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Alternative Law Journal |
Ian Freckelton is a Melbourne barrister
Far-reaching
changes continue the process of transforming the role of the coroner from what
it was in the early days of the Legal Service Bulletin. Only in New South
Wales and Queensland do coroners retain the power to commit people for trial. In
every other jurisdiction, the coroner’s role is confined to making
findings in relation to deaths and fires, while in certain other jurisdictions
coroners can also investigate and make findings about explosions (NSW, Tas),
disasters (ACT, NT) and accidents (SA).
The identity of the trier of fact
in coroners’ courts has also changed over the last quarter of a century.
Most latterly under 1999 changes to the coronial legislation Victoria has joined
all other jurisdictions in Australia, with the exception of New South Wales, in
removing the fact-finding role in coroners’ courts from juries and
entrusting it solely to the executive-appointed coroner. Historically, and
practically, this is a most important shift toward ‘expert’
decision- making in coroners’ courts and removal of the role of the
ordinary person from the process.
The Coroners (Amendment) Act
1999 (Vic) has also wrought other significant alterations to the way that
the coroner goes about his or her fact-finding process in Victoria. Like the ACT
the previous year, Victoria has now abolished, in respect of death inquests, the
requirement for coroners to find the identity of any person who contributed to
the cause of a person’s death. This occurred in the aftermath of the
Victorian Court of Appeal decision in Keown v Khan (1998) 101 A Crim R
503 in which Callaway JA overtly doubted the utility of the provision mandating
such a finding and questioned whether it imposed a requirement beyond the
strictures of findings about how a person died and what constituted their cause
of death. The Victorian legislation, however, continues to require that a
coroner find, if possible, the identity of any person who contributed to the
cause of a fire: Coroners Act 1986 (Vic), s.36(1)(c). In Tasmania, the
requirement to find the identity of a person contributing to a cause of death
remains: Coroners Act 1995 (Tas), s.28(1)(f).
A key issue for the
efficacy of the coronial jurisdiction is what obligations that government
departments, statutory authorities and other entities have to take notice of and
implement coronial findings and recommendations. The issue goes to the heart of
the coroner’s role as a modern-day inquisitor, as against an organ of
state with coercive powers to enforce findings and ‘suggestions’. In
Victoria, the overt powers of a coroner to ‘report’ to government
beyond the Attorney-General were confirmed by 1999 amendment so that the coroner
has jurisdiction to report to ‘any Minister or public statutory
authority’: Coroners (Amendment) Act 1999 (Vic), s.11. However,
what about where government, for instance, is obdurate to findings and
recommendations by coroners? In most jurisdictions it can be so with impunity,
the only sanction for the coroner being the adverse publicity likely to be
generated by such intransigence, if the media draw attention it.
A
tentative way to the future was perhaps shown by the 1993 Northern Territory
coronial legislation. Where a Northern Territory coroner holds an inquest into
the death of a person held in custody or who dies as a result of injuries caused
or contributed to while in custody, the coroner is obliged to proffer
recommendations with respect to the prevention of future deaths in similar
circumstances: Coroners Act 1993 (NT), s.26(2). Not only this but the
coroner is obliged to send such a report or recommendation ‘without
delay’ to the Attorney-General who in turn is obliged to remit it to the
appropriate Minister (s.27), the Attorney-General also having to present a copy
of the report or recommendation to the Legislative Assembly within six sitting
days of receipt. Neither the Minister, nor the Attorney-General, has to respond
in any way to the report or recommendation, but the political pressure to do so
is significant.
Similarly, under important, and potentially influential,
changes introduced by s.75 of the Coroners Act 1997 (ACT) a coroner is
obliged to report a record of his or her findings in relation to a death in
custody to the Attorney-General, the custodial agency where the death occurred,
the Minister responsible for the Agency, the Australian Institute of
Criminology, and, if the deceased was an Aboriginal person or a Torres Strait
Islander, to an appropriate Aboriginal legal service. The custodial agency to
which the report is given has to respond within three months in writing to the
relevant Minister: s.76(1). In its response, it is obliged to incorporate a
statement of the action (if any) which has been, or is being, taken with respect
to any of the findings contained in the report. By apparent oversight the
mandated response does not relate to coronial recommendations.
What is
revolutionary in respect of these changes is the introduction of an obligation
on the part of people affected or the subject of coroners’ findings to
respond in some way to what coroners have found to be the cause of death or
other phenomena. Such a transformation of the coroner’s role has major
repercussions in terms of rendering the coroner into an entity with the capacity
to have a substantial impact on reducing the incidence of avoidable death and
injury. It carries with it a significant change to the coroner’s role,
though, as a solely arbitral, curial entity, other courts and judges’
rulings not being the subject of a legislated, mandated response on the part of
those affected by them, unless orders are made in respect of
parties.
Coroners’ hearings have assumed a dramatically more
prominent community role over the past quarter of a century. A series of
inquests into fatal shootings by police in Victoria lasted toward two years, the
inquest into the Canberra Hospital implosion attracted nationwide publicity, the
Thredbo inquest has attracted saturation media coverage, as did the Kew Cottages
inquest in Victoria. At the time of writing, the Victorian inquests into a
series of deaths in the privatised Port Phillip Prison at Laverton had also
engaged substantial public interest.
The coronial inquest in Australia
has taken a different direction from its English cousin, regularly constituting
a major inquiry into death with a constructive focus into how the avoidable can
be avoided. With the evolution, though, come new challenges. If inquests are to
assume such prominence and to cost the state and others such substantial sums of
money, they must be able to be justified in terms of the benefits they carry
with them. This means they must not take longer or cost more than is absolutely
necessary. Nor must they engender harm or suffering more than must accompany the
achievement of their objectives. In addition, there must be sufficient political
or structural sanctions against snubbing of the fruits of inquest findings and
recommendations to render the process generally worthwhile. Ironically, while
the Northern Territory and ACT initiatives and the greater connection of
Victorian coroners’ findings with Ministers other than the
Attorney-General may be the start of a process leading toward mandatory
responses to coronial findings and recommendations, the main answer probably for
the present lies with what has become an intrinsic aspect of coronial
proceedings — the publicity given to them by the media. As in so many
aspects of the law, what was apparent at the start of the Legal Sevice
Bulletin era remains true a quarter of a century later. There are major
limits to what courts’ decisions can accomplish if the parties have no
wish to respond cooperatively. Ultimately, what engenders change most
effectively is public opinion (often funnelled through the media) and the
pressures that it brings to bear.