Debate resumed from an earlier hour.

Mr GEOFF PROVEST (Tweed—Parliamentary Secretary) [4.28 p.m.]: The Coroners Amendment Bill 2012 contains a number of amendments to the Act, and I have participated in a briefing on those amendments. They include defining a person's legal representative, particularly with a senior next of kin; declaration of mental health facilities; what deaths should no longer be reported; what is necessary to change the word "resident" to "patient"; publication of submissions that do not contravene the principles of open justice; case management intervention by a Minister; objections to post-mortems by a senior next of kin; and other issues.

I will deal with some of the issues in detail. The majority of the bill seeks to clarify legal representation and perhaps the court's interpretation of the Coroners Amendment Bill 2012. On a number of occasions I have dealt with various issues from the Coroner's Court while representing constituents of the electorate of Tweed that were involved in the process. They were relatives or friends of those involved in the inquiry, or those involved directly in the inquiry. Over the past five years I have been involved in a number of representations to the previous Government, the Attorney General and so on. Some of the grey areas in the Act in relation to the Coroners Court created a lot of frustration for community members at a traumatic period in their lives. The question of open justice is dealt with in new section 76 (1) (d).

Like other proceedings, coronial proceedings are generally held in public in accordance with the principles of open justice. Although open justice is significant in guiding the courts in a range of matters it is not a free-standing right and can be limited as required by other factors. Section 76 (1) (a) to (c) of the Act prohibits the publication of questions, warnings, objections, and incriminating evidence given in proceedings without the express permission of the coroner presiding. The amendment extends this prohibition to submissions and other comments made by people in coronial proceedings concerning whether an inquest or inquiry should be suspended and the material referred to the Director of Public Prosecutions for prosecution. Publication of these submissions and comments could be potentially prejudicial to either the prosecution or defence of the known person.

The limitation upon open justice is justified in this context and is based upon a recommendation by the State Coroner. As I have said in the House previously, the amendments deal with specific issues in relation to interpretation by courts of law. A number of my colleagues with legal backgrounds will give members a more in-depth view. I draw the attention of the House to the terms of the amendment for the intervention by a Minister in application under chapter 7 of the Act, section 86A. Within the Supreme Court is the inherent jurisdiction to grant the Attorney General leave to intervene when there is no other active contractor—for example, there is no other party opposing the application to have an inquest or inquiry held. However, the policy intent of section 86 is that seeking leave should not be required as it is to be expected that the Attorney General would have the right to intervene. Unfortunately the section is not clear enough to ensure this interpretation.

In 2009 the applicant indicated an intent to argue that the Attorney General had a very limited role under section 86 (2), which was restricted to making submissions. The matter was resolved without binding precedent and, therefore, uncertainty remains regarding the meaning of the right of the Attorney General to be heard at the hearing. Arguing this point in each case is an unnecessary drain on State resources. Consideration of the bill is another example of the Attorney General and his department working to clarify and increase the transparency of the laws of this State. I applaud that effort. The Attorney General and his office have been speedy in providing advice to my constituents in relation to the Coroner's Court. Once again I am not only 100 per cent for the Tweed but I am 100 per cent for the O'Farrell-Stoner Government.

Mr CHRIS SPENCE (The Entrance) [4.35 p.m.]: I support the Coroners Amendment Bill 2012. The Attorney General has noted the Coroner's Court of New South Wales has one of the best clearance rates and the lowest backlog of any coroner's court in Australia. This bill offers further clarification to the Coroners Act 2009 and will assist the New South Wales Coroner's Court in expediting coronial matters. The term "legal personal representative" is broad and often used in the statute book without definition as it has common law and statutory meanings. To avoid confusion, it has remained undefined, but may include a guardian appointed by the Guardianship Tribunal or under an enduring power of attorney.

If, for example, an adult child, a parent or an adult sibling is able to act as senior next of kin and can exercise their rights and responsibilities, it is unlikely that a legal personal representative would be used as a senior next of kin. This will be determined at the discretion of the Coroner by assessing the circumstances surrounding each individual case and will depend on factors such as the relationship between the deceased and the legal personal representative and the scope of the legal personal representative's responsibilities immediately preceding the death, and will take into account reasons why the living senior next of kin was not deemed appropriate to act.

The Attorney General advises that since late 2009, more than 30 emergency departments have been gazetted as a declared mental health facility within the meaning of the Mental Health Act 2007, and this amendment will clarify the requirements under which the emergency department must report a death. The amendment essentially means that people who die while receiving mental health care, treatment or assistance in a gazetted emergency department are reportable to the Coroner—not all deaths. This also relates to the hypothetical scenario that if a patient has presented to a gazetted emergency department for mental health care, treatment or assistance, but takes his or her life before seeing a doctor, that death would still be reportable under section 6 (1).

Following a request from the New South Wales Ministry of Health, an amendment is made to the reference of a "resident" of a mental health facility, and is now referred to as "patient"—as this is the common word used among mental health professionals. Section 74 (1) (c) enables a coroner to order that any evidence given in coronial proceedings not be published if the Coroner is of the opinion that to publish would not be in the public interest. As stated by the Attorney General, "The amendments ensure that there is now an express power to order non-publication of submissions and comments made in relation to whether a known person may have committed an indictable offence or whether an inquest or inquiry should be suspended for this reason."

Coronial proceedings are generally held in public according to principles of open justice. However, there are occasions when it is appropriate to apply certain limitations. The amendment prohibits the publication of questions, warnings, objections and incriminating evidence given in coronial proceedings without the express permission of the coroner presiding, and extends to the prohibition of submissions and comments made by people as to whether a matter should be suspended and referred to the Director of Public Prosecutions to consider prosecution, in which case the publication could prejudice either the prosecution or defence of a known person.

The Act also enables a coroner to reopen an inquest or inquiry following any determination of criminal charges. It also allows the State Coroner to resume, commence or dispense with an inquest or inquiry if the individual coroner responsible is unavailable to resume, commence or dispense with that inquest or inquiry. As the State Coroner no longer has the power to direct an inquest or inquiry to not be resumed once it has been resumed officially by a coroner, the matter will first be reviewed by the State Coroner to case manage the file actively and, if necessary, direct that it not be resumed.

The Coroners Amendment Bill 2012 clarifies the rights of the Attorney General to intervene in applications made to the Supreme Court under sections 84 or 85. It is within the Supreme Court's jurisdiction to grant the Attorney General leave to intervene where there is no party opposing an application to have an inquest or inquiry held. However, the intention of section 86, although it was not clear, is that seeking leave should not be required as it is expected the Attorney General would have the right to intervene. Arguing the right of the Attorney General to be heard in individual cases is an unnecessary drain on State resources and, therefore, the amendments make clear the Attorney General's rights for intervention. The bill seeks to clarify the rights of the Coroner to refuse a request by a senior next of kin not to conduct a post-mortem examination, where the senior next of kin has been, or may be, charged in relation to the death.

If the Coroner determines a post-mortem examination is necessary despite a request not to do so, the Coroner is required to give the senior next of kin notice of that decision, and the Coroner can then not conduct the examination until at least 48 hours have passed to allow time for the senior next of kin to apply for the decision to be overturned by the Supreme Court. Other family members will continue to have the right to object to a post-mortem examination and the amendments will not affect their right to seek judicial review of a coroner's decision in the Supreme Court. These amendments have been determined through extensive consultation between the Attorney General and all key stakeholders. This important bill will further streamline the Coroner's Court by clarifying what were ambiguous definitions and interpretations, and providing clearer definitions of roles, responsibilities and particular powers. I commend the bill to the House.

Mr STEPHEN BROMHEAD (Myall Lakes) [4.40 p.m.]: I speak in support of the Coroners Amendment Bill 2012. The Coroners Act 2009 was the result of a substantial review in 2008 of previous legislation by the Department of the Attorney General and Justice, in consultation with the State Coroner, the Chief Magistrate and a range of internal and external stakeholders. The Coroners Act 2009 sought to modernise and simplify many of the provisions in the previous Acts. The Productivity Commission's Report on Government Services 2012 compared the Coroner's Court of New South Wales with equivalent tribunals in other jurisdictions against a range of performance and efficiency indicators, and found that the clearance rates by New South Wales were generally quite positive. Despite the relatively new practices provided by the Act, together with broadly positive reviews, the Attorney General of New South Wales said in his agreement in principle speech:

As with any significant reform process … some issues will only become apparent during implementation.

The amendments in this bill are designed to rectify those issues that have been identified. These amendments have been the subject of consultation with key stakeholders, including members of the judiciary, government departments and agencies, the Law Society, the New South Wales Bar Association and the State Coroner. The object of the bill is to amend the Coroners Act 2009:

(a) to enable a coroner to treat a person who was a deceased person's legal personal representative as the deceased person's senior next of kin for the purposes of the Act if the coroner is satisfied that the person who is available to act as senior next of kin is unable to do so,
(b) to provide that the death of a person in or temporarily absent from a declared mental health facility … is reportable to a coroner if the person was a patient at the facility for the purpose of receiving care, treatment or assistance …
(c) to enable a coroner to order that submissions in coronial proceedings concerning whether a known person may have committed an indictable offence not be published, and
(d) to prevent the publication of certain submissions and comments in coronial proceedings concerning the suspension of coronial proceedings without the consent of a coroner, and
(e) to enable the State Coroner to direct that suspended coronial proceedings not be resumed, and
(f) to enable the Attorney General to intervene in applications made to the Supreme Court for a coronial inquest or inquiry to be held, and
(g) to enable a coroner to refuse a request by a senior next of kin of a deceased person for a post mortem examination not to be conducted if he or she has been, or may be, charged with an offence in connection with the deceased person's death, and
(h) to make provisions … consequent on the enactment of the proposed Act.

Schedule 1 [2] provides that a death that occurs while the deceased person is in or temporarily absent from a declared mental health facility within the meaning of the Mental Health Act 2007 is reportable to a coroner if the person was a patient at the facility for the purpose of receiving care, treatment or assistance under the Mental Health Act 2007 or Mental Health (Forensic Provisions) Act 1990. Item [3] of the schedule enables a coroner to treat a person who was a deceased person's legal personal representative immediately before the deceased person's death as the deceased person's senior next of kin for the purposes of the Act if the Coroner is satisfied that the person who is available to act as senior next of kin is unable to do so.

Schedule 1 [4] enables a coroner to order that submissions made in coronial proceedings concerning whether a known person may have committed an indictable offence not be published. Failure to comply with such an order will constitute an offence. The maximum penalty for such an offence will be 10 penalty units or imprisonment for six months in the case of an individual, or 50 penalty units in any other case. Item [5] makes it an offence to publish submissions made to, or comments made by, the Coroner concerning the suspension of coronial proceedings without the consent of a coroner. The maximum penalty for the offence will be 10 penalty units or imprisonment for six months in the case of an individual, or 50 penalty units in any other case. Item [8] enables the State Coroner, after consulting with the coroner who ordered it, to direct that a suspended coronial inquest or inquiry not be resumed.

For this purpose, item [7] will require a coroner to notify the State Coroner before resuming coronial proceedings. Item [10] enables the Minister to intervene in applications made to the Supreme Court by another person for a coronial inquest or inquiry to be held. Item [12] enables a coroner to refuse a request by a senior next of kin of a deceased person for a post-mortem examination not to be held if the senior next of kin has been, or may be, charged with an offence in connection with the deceased person's death. Item [15] enables the Governor to make certain regulations under the Act. The Coroner's Court is an extremely important court, and its legislation has been in existence for more than 100 years.

Mr Paul Lynch: Since the twelfth century.

Mr STEPHEN BROMHEAD: It was adopted in this country—

Mr Paul Lynch: Through the common law.

Mr STEPHEN BROMHEAD: —initially through the common law, but by statute in the 1900s. A number of people specialise in this jurisdiction, which deals with not only deaths but also fires. The Coroner has wider powers than have magistrates or judges of the Local Court, District Court and Supreme Court when it comes to compelling persons to give evidence to inquests and inquiries. In my time as a police officer and lawyer, on a number of occasions I prepared for the Coroner a report on an inquest into a death, or a report in relation to inquires relating to fires.

As a lawyer I represented people who had been named persons of interest in relation to murders and deaths in custody, and I was also involved in proceedings regarding road fatalities and suicides. All road death matters in which I was involved related to accidents on the Pacific Highway. It was sad, before the highway was upgraded, to see the number of deaths that occurred in the 1980s and 1990s, each requiring a coronial inquest. The legislation was changed to give the Coroner power to compel persons to give evidence, ensure that proceedings were conducted in a manner that was fair to and protected the rights of persons of interest, and at the same time facilitating the job of the Coroner and prosecutor. Taking a leaf from the book of the member for Tweed, I say again: Break a leg for Myall Lakes.

Mr ANDREW CORNWELL (Charlestown) [4.49 p.m.]: It is with pleasure that I support the Coroners Amendment Bill 2012, which will amend the Coroners Act 2009 to improve the operation and effectiveness of the New South Wales Coroner's Court. The Coroners Act 2009 was the result of a major review of the previous legislation in 2008 and it modernised and simplified many provisions in the previous Act. The Act prevents natural deaths from being unnecessarily reported to coroners, and that enables the Coroner's Court to focus more on deaths that are suspicious or unexplained. Subsequent to these reforms, the Productivity Commission's recent report on government services in 2012 found that the Coroner's Court of New South Wales has one of the best clearance rates and the lowest backlogs of any Coroner's Court in Australia. Resolving coronial matters in a timely manner reduces uncertainty and stress for grieving families and can help them come to terms with the loss of a family member or loved one.

The Coroners Act 2009 came into force at the beginning of 2010 and the Coroner's Court has adjusted well to its introduction. As with any significant reform process, however, some issues became apparent only after its implementation. This bill addresses a number of issues identified by the State Coroner to further improve the operation of the Coroner's Court of New South Wales and to clarify legislation in certain circumstances. The State Coroner supports each of the proposed amendments contained in the bill, and detailed consultation has been carried out with a broad range of stakeholders. I will run through a few of the proposed changes. The bill amends the definition of "senior next of kin". The term "legal personal representative" is broad and is often used in the statute book without definition as it has common law and statutory meanings. The Office of the Parliamentary Counsel recommended leaving it undefined lest it cast doubt on other references in the statute book. A legal personal representative may include a guardian appointed by the Guardianship Tribunal or under an enduring power of attorney.

In the event that a person is available to act as senior next of kin, as defined within section 6A (1), that is, an adult child, a parent, an adult brother or sister, and that person is able to exercise his or her rights and responsibilities, it is unlikely that the Coroner would exercise the discretion to treat the legal personal representative as senior next of kin. The Coroner will have to make an assessment in the circumstances of each case, and that will depend on a range of factors, including such matters as the relationship between the deceased and the legal personal representative; the scope of the legal personal representative's responsibilities immediately prior to the death; and the reason the living senior next of kin was not deemed appropriate to exercise those responsibilities, which will vary considerably upon the nature and scope of the legal personal representative's authority.

The bill also clarifies NSW Health's obligations. New South Wales has more than 30 emergency departments that are declared mental health facilities. Persons who die whilst in an emergency department which is a declared mental health facility and in which they were receiving mental health care will continue to be reported to the Coroner. The amendment to this section is more in the nature of a clarification. NSW Health is concerned that the practical effect of section 6 (1) (f) is that all deaths that occur while a person is in or temporarily absent from one of the gazetted emergency departments under the Mental Health Act 2009 must be reported to the Coroner. This was not the intention of the section as originally drafted and the amendment will clarify this point. The aim of the amendment is to clarify that people who die whilst receiving mental health care, treatment or assistance in a gazetted emergency department are reportable to the Coroner.

Currently there is some confusion for NSW Health and emergency department staff about their obligations, especially regarding the word "resident". That is not a word in common use amongst mental health professionals. The word "patient" clarifies the intended meaning. The New South Wales Ministry of Health requested this amendment. If persons present to an emergency department for mental health treatment but have not yet received it and take their lives, the Act clears up whether or not that is reportable. That scenario would still be a reportable death under section 6 (1) of the Coroners Act and the Coroner would accordingly investigate what assessment was made of the deceased prior to the death, including questions such as whether he or she waited an unreasonable amount of time to be seen by a doctor. The Coroner's Court advises that in actuality that scenario is unheard of. The most usual scenario is when persons take their own lives after being assessed and being allowed to leave. Under the amendment those deaths would still be reportable.

Furthermore, the amendment will not affect any obligation to report a death that is reportable under one of the other circumstances outlined in section 6 (1), that is, if the death occurs in any of the following circumstances: the person died a violent or unnatural death; the person died a sudden death the cause of which is unknown; the person died under suspicious or unusual circumstances; the person died in circumstances where he or she had not been attended by a medical practitioner during a period of six months immediately before the person's death; or the person died in circumstances where his or her death was not the reasonably expected outcome of a health-related procedure carried out in relation to the person. They are just a few of the sensible amendments that are contained in the bill that will improve the previous Act. This is just another example of the O'Farrell Government getting on with the job of making New South Wales number one again. I commend the bill to the House.

Mr RICHARD TORBAY (Northern Tablelands) [4.55 p.m.]: I note that Government members are keen to support this good amendment bill and I commend the Attorney General who has presided over a number of good changes in his portfolio areas. I support the introduction and passage of the Coroners Amendment Bill 2012. The bill, which will amend the Coroners Act 2009, addresses a number of issues that some speakers have touched upon that were identified by the State Coroner and by other stakeholders to further improve the operation of the Coroner's Court of New South Wales and to clarify the legislation.

The object of this bill is to amend the Coroners Act 2009 to enable the Coroner to treat a person who was a deceased person's legal personal representative as the deceased person's senior next of kin for the purposes of the Act if the Coroner is satisfied that the person who is available to act as the senior next of kin is unable to do so; to provide that the death of a person in or temporarily absent from a declared mental health facility is reportable to the Coroner if the person was a patient at the facility for the purposes of receiving care, treatment or assistance; to enable the Coroner to prevent the publication of certain submissions in coronial proceedings concerning whether a known person may have committed an indictable offence, as well as to prevent the publication of certain submissions and comments concerning the suspension of coronial proceedings without the consent of the Coroner; to enable the State Coroner to direct that suspended coronial proceedings not be resumed; and to enable the Attorney General to intervene in certain applications.

The bill clears up a range of matters that were ambiguous and open to subjective interpretation. I contacted the Law Society of New South Wales, which I do as a matter of process in relation to bills such as this, and was informed that it welcomes the changes made to the Coroners Act 2009 following its submission. The Law Society believes that the changes will bring New South Wales into line with other jurisdictions. All members will agree that resolving coronial matters without delay reduces uncertainty and stress for grieving families and can help them come to terms with the loss of a loved one at a most difficult time. I commend the bill to the House.

Mr ANDREW GEE (Orange) [4.58 p.m.]: I support the Coroners Amendment Bill 2012, which will greatly improve the operation and effectiveness of the New South Wales Coroner's Court. At the outset I echo the omniscient comments of the member for Myall Lakes about this important bill. Just over a week ago I listened in this House to the member for Keira speaking about the member for Myall Lakes. The member for Keira had a go at the member for Myall Lakes because of his broad-ranging life experiences. The member for Myall Lakes has been a nurse, a police officer and a solicitor.

The member for Keira apparently thought that was a great joke, that it was very funny. The performance of the member for Myall Lakes today showed the difference between the world of The Nationals member and that of the member for Keira, the party apparatchik. There is a difference between the two sides of this House. Government members have broad-ranging and real life experiences. The member for Keira inhabits a world of political paybacks and mates scratching one another's backs. The member for Myall Lakes certainly is not a jumped up, tricked out party apparatchik.

Mr Paul Lynch: I have two points of order. The first is that the member speaking clearly is overexcited and should calm down.

The ASSISTANT-SPEAKER (Mr Andrew Fraser): Order! That is not a point of order.

Mr Paul Lynch: But it is a pretty accurate observation. The second point of order is that he should come back to the leave of the bill. He has moved well away from the leave of the bill.

The ASSISTANT-SPEAKER (Mr Andrew Fraser): Order! I did not hear what the member for Orange said.

Mr ANDREW GEE: For your benefit, Mr Assistant-Speaker, I was referring to a "jumped up, tricked out party apparatchik". I will return to the leave of the bill. This bill enables a coroner to treat a person who was a deceased person's legal personal representative immediately before the deceased person's death as the deceased person's senior next of kin if the Coroner is satisfied that other persons available to act as senior next of kin are unable to do so. In some circumstances, a person's legal personal representative immediately prior to his or her death has been appointed because the deceased person's immediate relatives were not able, or were deemed not able, to manage that person's affairs. Without the amendment that legal personal representative may not be considered to be the deceased person's senior next of kin following death. This situation will be rectified under the bill.

The bill also adds clarity to the obligations of NSW Health with respect to the reporting of deaths. Currently over 30 emergency departments have been gazetted as declared mental health facilities within the meaning of the Mental Health Act 2007. One of the issues with respect to the current Act is ambiguity over whether all deaths of people who are in or temporarily absent from one of these gazetted emergency departments must be reported to the Coroner, including those who are admitted for general care, treatment or assistance as opposed to mental health care, treatment or assistance. The bill clears up this ambiguity by providing that the death of a person temporarily absent from a declared health facility is reportable to the Coroner if that person was a patient at the relevant facility for the purpose of receiving care or treatment under the Mental Health Act 2007 or Mental Health (Forensic Provisions) Act 1990.

A further amendment of note is that the bill enables a coroner to order that submissions made in coronial proceedings regarding whether a known person may have committed an indictable offence not be published. This provision has been made because such submissions could have a potential to cause prejudice to future criminal proceedings. A further amendment to the current Act makes it an offence to publish submissions made to, or comments by, the Coroner with respect to comments made about the suspension of coronial proceedings without the leave of the Coroner. This is another provision brought in to ensure that future criminal proceedings are not prejudiced. It is an eminently sensible amendment.

Item [8] of schedule 1 to the bill also enables the State Coroner to direct that a suspended coronial inquest or inquiry not be resumed in order to better manage coronial matters. It requires consultation with the relevant coroner and the Chief Magistrate where the coroner is also a magistrate. The State Coroner recommended this amendment. Items [9] and [10] of schedule 1 to the bill amend section 86 of the Coroners Act 2009 to clarify the rights of the Attorney General, as the Minister administering the Coroners Act, to intervene in applications made to the Supreme Court. Section 86A allows the Attorney General to be heard on the hearing of an application even if he or she does not intervene or is otherwise a party to the hearing. This adds flexibility to the scope of the Minister's powers and will hopefully allow for greater efficiencies in the conduct of application hearings.

Item [16] of schedule 1 to the bill provides that amendments in the bill which allow the Coroner to refuse a request made by the senior next of kin of a deceased person that a post-mortem examination not be conducted can extend to requests made but not determined before the commencement of those amendments. Ordinarily any provisions in a bill that have retrospective effect have attracted comment in the past and people have taken issue with such provisions. However, even though this bill has retrospective effect in that regard the provision only applies to prevent a person suspected of an offence in connection with a deceased person's death from requesting that a post-mortem examination not be conducted. That is an eminently sensible amendment that I wholeheartedly support. I congratulate this hardworking Attorney General on introducing the bill, which I think will be welcomed by all who practice in the Coroner's Court and by the legal community generally. I commend the bill to the House.

Mr RICHARD AMERY (Mount Druitt) [5.05 p.m.]: I will make a few comments in debate on the Coroners Amendment Bill 2012. The overview of the bill has already been outlined on a number of occasions by the Attorney General and other speakers, including the shadow Minister, the member for Liverpool, who led in debate on behalf of the Opposition. As the shadow Minister indicated, the Opposition will not oppose the bill. That is obviously an appropriate position to take because there is nothing of a party political nature in the bill that would cause major parties any concern. This bill tidies up some legislation that has been constantly reviewed over the years mainly by governments or by the State Coroner.

This bill is a tidying up process; it is not about making New South Wales number one again, unlike what was said by an earlier speaker. Even members who draw the longest bows could not make the stretch that this bill is major legislative reform by a new Government. As a matter of fact, most of its origins come from an ongoing review process and recommendations by the State Coroner over a long period and have little to do with which party would have been in government at the time the bill was drafted. The member for Myall Lakes made some reference to the Coroner's Court. As a former police officer I recognise the incredibly good and difficult work done by coroners and their staff. They deal in the area of life and death which is sensitive and which can be most complicated in any court processes. Like all police officers—many are now represented in this Parliament—I know that the preparation of reports to the Coroner is an everyday occurrence. However, these days I do not know what the reports are called. A member who has more recent experience in police work might be able to enlighten us.

Mr Bryan Doyle: The P79a form.

Mr RICHARD AMERY: The P79a was the old form. I do not know whether it has been changed since then.

Mr Bryan Doyle: We still stick with it.

Mr RICHARD AMERY: The P79a, which was always produced with six copies, was submitted after a reportable death required its submission by police. An interesting component to this bill, which must have arisen as a result of some problems or gaps in the legislation, is its provisions about a person who is a patient of an institution that treats mental illness and so on. Obviously in various coronial inquests problems have arisen relating to where a person was when he or she died. Some flaw in the legislation must have been exposed which brought about this recommendation which should not be overlooked. Other interesting aspects in the overview of the bill are to be found in paragraphs (a), (c), (d) and (e), which state:

(a) to enable a coroner to treat a person who was a deceased person's legal personal representative as the deceased person's senior next of kin for the purposes of the Act if the coroner is satisfied that the person who is available to act as senior next of kin is unable to do so, and ...

(c) to enable a coroner to order that submissions in coronial proceedings concerning whether a known person may have committed an indictable offence not be published, and

(d) to prevent the publication of certain submissions and comments in coronial proceedings concerning the suspension of coronial proceedings without the consent of a coroner, and

(e) to enable the State Coroner to direct that suspended coronial proceedings not be resumed ...

Item [4] of schedule 1 to the bill enables a coroner to order that submissions made in coronial proceedings, concerning whether a known person may have committed an indictable offence, will not be published. That is an important provision. Item [12] of schedule 1 inserts new section 96 (5), which states:

The coroner may refuse a request made by the senior next of kin of a deceased person for a post mortem examination not to be conducted on the deceased person if the coroner is satisfied that the senior next of kin has been, or may be, charged with an offence in connection with the deceased person's death.

Members may think that is an obvious power for a coroner to exercise, but there may have been some difficulties in the past. All members would be aware of tragic stories that have been made public in recent years relating to persons being arrested and charged with the murder of their own family. One cannot imagine the circumstances that would lead to such a tragedy. A person who is a suspect in a police investigation may have an interest in affecting the processes of the Coroner's Court, so a coroner should have the power to order a post-mortem and refuse a request by a senior next of kin. I will not deal with the circumstances that could lead to a suspect refusing to give permission for a post-mortem. Suffice it to say that in recent years there have been cases in which a person who is the senior next of kin has been charged with the murder of a member of their own family.

Existing legislation may have shortcomings that limit the ability of a coroner to make appropriate orders. This bill performs the very important function of addressing that anomaly. It is an everyday function of the police and other government officers to report deaths to the Coroner. When grieving families challenge coronial procedures, it is very difficult for the coroner to proceed and make final determinations. Legislation should continually be reviewed and amended when necessary to enable the Coroner to handle difficult matters. I suggest that many of the provisions in this amending bill emanate from identification of problems and shortcomings in existing legislation. The Opposition supports the bill.

Mr MARK SPEAKMAN (Cronulla) [5.12 p.m.]: I support the Coroners Amendment Bill 2012. In 2008-09 the Department of Attorney General and Justice substantially reviewed coronial legislation in consultation with the State Coroner, the Chief Magistrate and various stakeholders. As a result of that review, the Coroners Act 2009 was enacted and it modernised and simplified many provisions in the previous Act. It prevented natural deaths from being unnecessarily reported to coroners, which enabled the Coroners Court to focus more on deaths that are suspicious or unexplained. As is the case with any significant reforms, there have been occasional teething problems or issues that have become apparent during implementation. The bill addresses a number of the issues that have been identified by the State Coroner and other stakeholders.

The State Coroner supports this amending bill, which has been the subject of consultation with key stakeholders, which include the Chief Magistrate, the Chief Justice of New South Wales, the New South Wales Ministry of Health, the Ministry for Police and Emergency Services, the New South Wales Police Force, Legal Aid NSW, the Crown Solicitor's Office, the Minister for Citizenship and Communities and Minister for Aboriginal Affairs, the Community Relations Commission, the New South Wales Bar Association and the Law Society of New South Wales. I will outline the purpose of the amendments that are stated in schedule 1 to the bill. The first set of amendments I will deal with appear in items [1] and [3] of schedule 1.

The provisions will enable a coroner to treat a person who was a deceased person's legal personal representative immediately before the deceased person's death as the deceased person's senior next of kin for the purposes of the Act, if the coroner is satisfied that the person who is available to act as senior next of kin is unable to do so. Item [2] of schedule 1 to the bill provides that when a death occurs at a time that a person is in, or is temporarily absent from, a declared mental health facility within the meaning of the Mental Health Act 2007, the death is reportable to a coroner if the person was a patient at the facility for the purpose of receiving care, treatment or assistance under the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990.

NSW Health was concerned that under existing legislation there is a possibility that all deaths that occur when a person is in, or is temporarily absent from, one of the gazetted emergency departments, must be reported to the coroner. It was not the intention of the legislation when it was originally drafted for reporting of deaths in all those circumstances to be mandatory. The purpose of the bill is to clarify that the death of a person that occurs while that person is receiving mental health care, treatment or assistance in a gazetted emergency department is reportable to the coroner.

The next set of amendments I propose to deal with relate to item [4] of schedule 1 to the bill. This provision will enable a coroner to order that submissions made in coronial proceedings concerning whether a known person may have committed an indictable offence will not be published. Like other proceedings, coronial proceedings generally are held in public, in accordance with the principles of open justice. Although open justice is significant in guiding the courts in relation to a range of matters, it is not a freestanding right and it can be limited, when required, by other factors. New subsection 74 (1) (c) will extend a coroner's power to cover written and/or oral submissions concerning whether a known person may have committed an indictable offence. Existing penalties for contravening a non-publication order are not amended by this bill. The maximum fine for an offence by an individual will be 10 penalty units, or six months' imprisonment, or 50 penalty units in any other case.

Item [5] of schedule 1 to the bill will prevent the publication of certain submissions and comments in coronial proceedings concerning the suspension of coronial proceedings without the consent of a coroner. In this case also, existing penalties for contravening a non-publication order are not amended by the bill. This provision has been included because publication of submissions and comments potentially could prejudice the prosecution or defence of a known person. In that context, the limitation upon open justice is justified and based upon a recommendation made by the State Coroner. Item [8] of schedule 1 to the bill will enable the State Coroner to direct that suspended coronial proceedings will not be resumed.

It should be noted that section 79 (6) of the Coroners Act already allows the State Coroner, or a coroner who is authorised by the State Coroner, to resume, commence, or dispense with an inquest or inquiry under section 78 if the individual coroner, who is responsible for the inquest or inquiry, is not available to resume, commence or dispense with that inquest or inquiry. The amendments will extend those powers to enable the State Coroner to proactively case manage files by issuing a direction that a suspended coronial inquest or inquiry will not be resumed. That will enable the State Coroner to efficiently case manage files, and particularly will assist the State Coroner when closing coronial proceedings.

The next set of amendments I will deal with relates to item [10] and a consequential amendment in item [9] of schedule 1 to the bill. New section 86A in item [10] will enable the Minister to intervene in applications made to the Supreme Court by another person for a coronial inquest or inquiry to be held. Already it is within the Supreme Court's inherent jurisdiction to grant the Attorney General leave to intervene when there is no other active contradictor—in other words, when there is no party opposing an application to hold an inquest or an inquiry. However, the policy intent of existing section 86 is that seeking leave should not be required as it is to be expected that the Attorney General would have the right to intervene.

But, unfortunately, that section is not clear enough to ensure a correct interpretation, and that necessitates the amendment. The new provision will clarify that in such circumstances the Attorney General will have full rights of a party, including the ability to adduce evidence, issue subpoenas and seek costs. The amendment will prevent uncertainty on this point in the future and will enable parties to avoid the expense of making submissions before the Supreme Court. I turn to the amendments in item [12] of schedule 1 to the bill. They will enable a coroner to refuse a request by a senior next of kin of the deceased person that a post-mortem examination not be held if the senior next of kin has been or may be charged with an offence in connection with the deceased person's death.

In relation to the threshold of "may be charged", advice from the Coroner's Court of New South Wales was that adopting a higher threshold of "likely to be charged" would make the amendment operationally ineffective. The coroner normally has to make this decision within a short time after death. When this provision is used, the coroner will rely upon advice from the NSW Police regarding the senior next of kin's potential involvement in the death. A higher standard such as "likely to be charged" may not be able to be met until a post-mortem examination has been carried out and the cause of death is clearer. Therefore, a higher threshold would render the section operationally impractical.

The benefit of postponing the post-mortem may have already been served. The situation sought to be overcome is rare and it is expected that the provision will be used infrequently. The decision will be subject to judicial review and therefore will have to be made on a lawful basis. Item [15] of schedule 1will enable the Government to make regulations of a savings or transitional nature consequent on the enactment of the proposed Act or any future amending Act. This set of amendments has the imprimatur of all the key stakeholders and is not opposed in this House. It is a sensible set of amendments. Teething problems emerged following the substantial review undertaken in 2008 and 2009. This bill addresses those teething problems. I commend the bill to the House.

Mr JAMIE PARKER (Balmain) [5.21 p.m.]: I speak on the Coroner's Amendment Bill 2012. As time is limited, I will not refer to each of the amendments. I appreciate that previous speakers have provided detail on them. The Greens support the bill, which contains relatively minor amendments. The amendments are positive. I acknowledge the work of the Minister's office and all those in the department who have worked on this legislation. The amendments in the bill represent another step forward. The Coroners Act 2009 represented significant reform to the operation of the Coroner's Court in New South Wales, and issues that have been identified since 2009 are addressed in this bill. I am heartened to hear that wide consultation has been undertaken on this bill. I understand that the State Coroner supports the bill and, following wider consultation, the Law Society, Bar Association, judges and Legal Aid New South Wales have given their broad support.

I commend the Minister, his office and his department for undertaking such consultation. I am pleased that the bill has the support of all those stakeholders. I raise two points and ask the Minister to address them in his reply. As many members know, the Coroner's Court is located in Glebe in my electorate. As the local member, I am contacted by people who are involved in matters before the Coroner. For many of the State's most disadvantaged people who are seeking justice and a full investigation of the circumstances of the death of their child, a relative or friend, the Coroner's Court is the last chance. It is important that we recognise the critical role of the Coroner's Court and the thousands of inquiries and matters dealt with by that court. I also acknowledge all the hardworking staff in this area.

In relation to coronial inquests, I have previously raised the issue of the substantial costs incurred by a victim's family in attempting to fully represent the interests of the deceased person—as was seen in the inquest into the tragic death of Sarah Waugh. When a matter goes on for several years the costs are onerous on families. These families often are not in a financial position to pay but they want to make sure that the deceased person is well represented. I ask the Minister to consider this issue in future amendments. Although it does not relate specifically to the bill, I ask the Government to address this issue by offering the support of advocates to families of deceased persons during the Coroner's Court process. Such assistance would be just and would relieve some of the pressure on those who are suffering terribly, not just emotionally but also as a result of the substantial cost burden.

Those who come into contact with the Coroner and the Coroner's Court often do so at a most difficult time in their lives. I emphasise my appreciation of the professionalism of the officers and staff who work in the Office of the Coroner. Their attention to detail in these coronial investigations is particularly admirable. There is an ongoing need to monitor the operation of the coronial system in New South Wales to ensure that it is transparent, accessible to families and adequately resourced to investigate all suspicious deaths in the State. There have been calls for greater reform, in particular, to require the Government to respond to all coronial inquest recommendations within a prescribed time, say, six months. I call on the Minister to examine this issue also.

I know the Minister has a bagful of reforms in relation to departments, recalcitrant individuals and recidivism with the aim of ensuring that the causes of crime are front and centre. I again ask the Minister to put his mind to the costs incurred by families of deceased persons before the Coroner's Court and call on the Minister and his department to consider a requirement that the Government respond to recommendations within a prescribed period. In the past it sometimes has taken the government of the day a very long time to deal with and carry out coronial inquest recommendations. I thank the House for the opportunity to speak on this bill. I welcome the amendments and look forward to assistance being provided to families of deceased persons.

Mr GREG SMITH (Epping—Attorney General, and Minister for Justice) [5.27 p.m.], in reply: I thank the members who contributed to the debate: the member for Liverpool, the member for Blue Mountains, the member for Camden, the member for Drummoyne, the member for Tweed, the member for The Entrance, the member for Myall Lakes, the member for Charlestown, the member for Northern Tablelands, the member for Orange, the member for Mount Druitt, the member for Cronulla and the member for Balmain. I note the comments of the member for Balmain. Although the matters he raised do not relate to this bill, I will consider the issues of legal aid for relatives of the deceased and the Government's prompt attention to coronial recommendations.

The bill contains miscellaneous amendments arising from the implementation of the Coroners Act 2009. The bill addresses a number of issues identified by the State Coroner and other stakeholders to further improve the operation of the Coroner's Court of New South Wales. The amendments will ensure that the conduct of coronial proceedings, the ordering of post-mortem examinations and the publication of matters arising in coronial proceedings are as appropriate as possible. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.


Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.