Coroners Bill

The Coroners Bill deals with a matter that may seem very remote to most people, and nearly everyone would want it to stay remote. But it touches one of those assurances of probity in public and private life that a country like New Zealand has taken for granted for many years. I think of the contrast with, for example, the Ukraine, where the presidential candidate, who might have been the successful candidate if there had not been electoral irregularities, had to go to Austria to find people who could be trusted to investigate his poisoning. My concern about the bill that has come before us is that it may be part of a trend to centralise and streamline—as the proponents of the bill think it is—functions that have been powerful simply because they are distributed, because they have been on occasion amateur or quirky, and because there is room for coroners around the country to pursue matters that might not necessarily have been seen by a central authority as the priority, as popular, or even as desirable.

My concern about the bill is that the appointment of a Chief Coroner, which is seemingly an efficiency measure to provide someone to coordinate and represent coroners as a body, and the reduction of the number of coroners to 20 full-time equivalents, could end up giving us—I will not say a coronary—a system of coronary inquiries that would be less reliable than what we have now. That is not because the system is not technically improved by the bill, and I am sure there is room for that, but because that quirkiness, that independence, and that character of having been drawn from the community and being part of the normal networks of gossip, of social contact, that coroners have at present may not be replicated if coroners become professional and much more clearly agents of the State.

In particular, I am concerned that the bill represents a triumph of political correctness, and that that may be a foretaste of the kind of approach that coroners will be directed to have by the Chief Coroner. The position of Chief Coroner will be very, very important because it appears on the drafting, as I read it, that it is the Chief Coroner who decides whether there is an inquiry. Therefore, coroners are subordinate to the Chief Coroner in a way that I think could be dangerous to our liberties at some stage in the future. While it may seem extremely remote at the moment, the question of whether a coroner’s inquiry is held could be central to the satisfaction of people that there is not something untoward going on.

The Chief Coroner’s function is described in clause 5(a) as being to oversee coroners’ investigations. So it is not simply an organising and case allocation role; it looks as if there is a supervision function. It is not clear whether the Chief Coroner can terminate an inquiry and assign someone else—in effect, take over if he or she wants. Clause 5(a) provides that the Chief Coroner facilitates the provision and coordination of support services and other services, but it does not give the Chief Coroner a budget, as I read it. That is held by the relevant department. This bill follows the modern drafting convention of not stipulating the department itself and the relevant Minister, that being left to the whim of the Prime Minister from time to time.

In a country that has such a long tradition of public integrity and lack of corruption in these matters, it is easy to say that fears might simply be paranoia. It is easy to say that, but in the last few years we have been going headlong into abandoning some of the institutional constraints and protections that we have had against it being worth our even considering corruption. We lost the Privy Council as our obvious independent umpire, and now we have our Chief Justice raising concerns about the subordination of her office and of the judicial office to the Ministry of Justice through its control of their budget, their communications, and their computer systems. Well, it seems that coroners are intended to be in every way as subject as the courts, and perhaps even more so. The Chief Coroner is to perform the functions of a head of bench. The Chief Coroner authorises coroners to open and conduct inquiries. I hope the select committee will look at that centralisation with a very suspicious eye indeed, particularly as it is allied to the absence of any apparent budget for the Chief Coroner. The Chief Coroner could be simply a toady for the department. It is not at all clear that there has been a sensitivity to the risk of that happening.

I also give notice that the select committee ought to look very closely at the sand being thrown into the gearbox by this bill in its exaggerated respect for so-called family. The definition of “immediate family” in clause 7 is: “(a) … members of the dead person’s family, whānau, or other culturally recognised family group, who—…had … an interest in the person’s welfare and best interests;”. Well, who would not be able to satisfy that requirement? That could be an enormous group of people. Paragraph (b) of the definition then goes on to say that, to avoid doubt, it includes brothers, stepbrothers, stepsisters, step-parents or guardians, grandparents, and so forth. That definition of so-called “immediate family” will impose on coroners an obligation to try to identify what could be a very large group.

The bill then goes on and requires them, in essence, to seek objections to the carrying out of a post-mortem, and gives 2 days for those objections to be made. If the objectors then go to the High Court to pursue their objection, it could take at least another day and probably more. So we end up with a situation where before a post-mortem can be ordered the deceased person might have been dead many days. Is that safe? What objective is being satisfied by allowing that kind of delay, when post-mortems are really a protection against foul play? For example, with many poisons, with many causes of death, the post-mortem should be done immediately for it to be satisfactory. The longer the delay, the harder it is to identify exactly what the cause of death was, particularly with substances that decay.

When I look at these provisions I can see that the intent is to encourage more respect for, and less brusque treatment of, family concerns. But I think that in this country it is competent for a Government to say that irrespective of someone’s superstitions, natural feelings towards the deceased, and unhappiness about interference with a body, the community for decades has had an interest in overriding those concerns, in order to make sure that everyone knows that a death is unlikely to be covered up for want of a post-mortem. Just introducing these provisions reduces that certainty. A potential wrongdoer might be able to bank on being able to delay—or even avoid entirely—a proper investigation into the cause of death.

So I want to know exactly what evidence the promoters of this bill have that post-mortems are a major cultural or spiritual problem; that these delays are not seen as problematic by the few pathologists that the country has managed to keep; and that the process of delay will not end up being overridden anyway, so that all we would have done is raise false hope in the minds of family members—that their wishes will be overridden and a post-mortem ordered, anyway. In other words, this bill may be a solution looking for a problem that hardly exists, and it may create more of a problem than it deals with. The kind of political correctness that infuses this bill is a worry as to the quality of the thinking behind it.

The Coroners Bill replaces the Coroners Act of 1988, and seeks to reform the coronial system to increase the effectiveness of that system and to enhance public confidence in it. The Greens consider that to be a very welcome move indeed, because there has been enormous inconsistency in the past in the quality of work done by coroners. It may be that that is a legacy of the history of the coronial system. It started off as a very non-professional service and it has evolved over time in various ways. I think this bill indicates that this Parliament is finally giving some real respect and status to coroners, which is something that is most welcome.

Most of the work done by coroners has been extremely good, valuable, and important, and we welcome that work. However, I think it is fair to say that in this country we have seen some coroners view their position as a platform for airing their personal views on political matters that are entirely unconnected to the case before them, outside their area of competence, and unsupported by evidence. They are matters that are entirely outside their area of expertise or their jurisdiction.

In particular, I think back to some of the comments made by Coroner Mate Frankovich in Auckland. He made a number of bizarre statements over time, and was never able to be effectively held to account for them. In May of 2000 he was investigating the death of Jamie Langridge of Whangarei following the taking of Ecstasy by that young man at a dance party. If I remember correctly, the death was related to his water intake as a result of loss of heat control due to taking Ecstasy. At the time, the coroner attacked what he called pro-cannabis politicians, and challenged them to attend inquests to better understand the damage caused by it. I am sure he was referring to people like myself and other Green MPs who have a strong policy and position on cannabis law reform. He thought that, somehow, our attending inquests of people who had died of Ecstasy might dissuade us from our opinion.

It was interesting at the time that Professor Sally Casswell of Auckland University, one of the most pre-eminent researchers in this area, said there was no evidence that cannabis had ever killed as Ecstasy has. That indicated that Mr Frankovich almost certainly had never presided over a cannabis-related death. She said that studies showed that most cannabis users did not go on to try Ecstasy, that she did not know of any deaths directly caused by cannabis, and that it was extremely unlikely that there had been any fatality directly related to its use. So cannabis use is a very different situation from the Ecstasy fatality that he was discussing in the Coroner’s Court.

Really, it is not the role of the coroner to use an inquest to vent personal views about unrelated policy matters. I consider that to be abuse of the coronial position, so I hope this bill will help to steer coroners away from that kind of abuse.

💬 Stephen Franks: That’s what the bill has been about.

Well, I think it is fair to say that coroners should stick to their job, which is to determine the cause and circumstances of death, and to make any recommendations about how such deaths could be avoided in the future. It is not the job of coroners to spout on about unrelated issues that have nothing to do with the case before them. I think it is entirely right that New Zealanders should expect that behaviour from coroners, just as we expect other professionals to deal with the matters before them, and not to use their position to make known their political views about other matters.

So the role of the coroner is to determine the cause and circumstances of death, and if appropriate, to make recommendations about how deaths might be avoided in similar circumstances. I think it is likely that our having coroners who are legally qualified and well trained will help to enhance that role, that having a Chief Coroner will help to enhance that role, and that having a complaints process will also help to enhance that role. Coroners will now be subject to the Judicial Complaints Commission, and I think that is right because coroners, as with any other quasi-judicial office, should be held to account and made to fulfil their function effectively, competently, and professionally.

It is especially important because the role of coroners is increasingly important in this country. Workplace risk is increasing in some professions, and it is important that we have people who are able effectively and competently to determine cause of death, and recommend ways of avoiding it in the future. If anything, one of my reservations would be to do with the enforceability of recommendations from a coroner. I have had meetings with a woman who came to see me in great distress because her husband had died in prison due to a lack of medical facilities in the prison. She told me that in the past coroners had made recommendations about essentially the same kinds of matters, and there was no indication that the Department of Corrections had picked up on those recommendations and actioned them. We need to make sure there is a process so that the recommendations of coroners are taken seriously and are actioned, particularly by Government departments when the investigations are of deaths in relation to functions of the State.

This bill has taken on a number of issues raised by the Law Commission in its 2000 report on ways to improve the system. We hope that they will improve the operations of the coroners themselves, and the processes by which they work. Much has been said about the new office of Chief Coroner, which will provide leadership, coordination, and consistency. We welcome that. There is a move to a small number of mostly full-time, legally qualified coroners. We think that is a good thing. It is important that, as I said, what is an increasingly important role is actually done professionally by people who are appropriately qualified. There is a specific regime for retention and release of body parts and bodily samples, and that is good. Inquiry and inquest processes are enhanced in a number of ways, including regulations about who can attend inquests.

A key thing, which has been mentioned by members already in the debate, is the relationship between families and coroners. It is not just a recent issue; it has actually been raised in the past a number of times by many different people in our community—Māori in particular, perhaps, but other people as well. I was really amazed to hear Judith Collins say that she had never heard of any of those complaints—that she had never heard any concerns raised about the way that coroners relate to families, and practices around bodies, and such. If that is true, I think it probably says more about the member than it does about the issue, because it is clear that a lot of concern has been raised about it over time.

I think some members are being a little bit uncharitable when it comes to this issue. When we look at the clauses in relation to family members—those from clause 20 on—we see that most of these things are fairly straightforward. They are about facilitating effective liaison with the immediate family. The coroner may recognise only the smallest number of representatives necessary to represent fairly the interests of all the different members of the immediate family, and that stands to reason. Families are not always united in their views, and the different views should be represented, but the coroner may recognise only the smallest number of representatives. That is all straightforward stuff. One would think it was fairly basic. I do not see why members object to it. Clause 21, “Coroner must give family representative, immediate family, and certain others notice of significant matters”, is fairly straightforward.

Some members referred to, for example, the right to object to a post-mortem, which Mr Franks talked about. Clause 31, “Right in some cases to object to post-mortem”, states: “(1) This section applies to a post-mortem of a body that a coroner proposes to direct under section 29 be performed unless the coroner proposes to direct that the post-mortem be performed immediately … because … any delay would or may limit the pathologist’s ability to determine the cause of death.” Well, surely that is the crux of the matter. People can object, but if the coroner considers that any delay may limit the ability to determine the cause of death, then the post-mortem will go ahead. I do not quite understand what the member is objecting to in that case

United Future welcomes the introduction and first reading of the Coroners Bill, and we will be supporting it to select committee. I must say that it is one of a number of pieces of legislation that have been hanging around for far too long, and I cannot help but reflect on the fact that if the Government spent less time on social engineering legislation, and more on substantive law reform, the country would be better off.

In terms of delay, I note that in November 2001, Phil Goff told the annual coroners conference that he hoped to have the new legislation in place by “next year”. Now, 3 years later, we are seeing it introduced, with a view to it being passed in about another 6 months. Coroners play an important role in our society, and the State’s role in getting involved in the whole area of suspicious deaths is to ascertain, as far as possible, the cause of all deaths. However, it is limited to deaths where there has been some suspicion of foul play, homicide, or neglect, and the role of investigating and determining whether any of those were the case; and, secondly, looking at dangerous or negligent practices, with a view to trying to modify or eliminate the loss of human life.

The State plays an important role in overseeing those issues, and it is quite appropriate that we have a rigorous, well-financed, and well-resourced Coroners Court so that we can keep on top of those issues. It is notable that it looks only at some deaths under section 4 of the Coroners Act. It is only where there is no known cause, an unnatural or violent act, suicides, where there has been some fault of medical procedure, and where deaths have occurred in prison or in a mental hospital.

There has been extended criticism of the 1988 Act—and the Law Commission, in its succession law project carried out in 1995 or 1996, noted the issues, and the particular issues of cultural sensitivity were raised. That prompted the commission to issue a discussion paper in 1999, where it identified and recorded a number of concerns in that area, which it listed as the procedures for the appointment, supervision, and removal of coroners; the failure of Government departments to act on coroners’ recommendations; the lack of uniformity of coronial practice throughout New Zealand; the absence of a method for systematic appraisal of coroners’ reports to ensure that patterns of sudden death, or factors predisposing to sudden death, are identified and accorded an appropriate response. There were a number of factors with regard to the conduct of the office—in particular, the insensitive handling of the body and/or body parts by coroners and pathologists, despite provisions in the Coroners Act that required coroners to have regard to cultural values or spiritual beliefs; practices that failed to take account of, or which conflicted with, different cultural values, such as leaving the deceased unattended at a mortuary; the failure to inform the family when body parts were removed, or samples taken; the absence of a specific provision requiring the return of organs or limbs removed during a post-mortem examination; and the consequent failure in some cases to return a specific body part with the body, or to notify the family that a body part had not been returned; and the unnecessary delay in the return of a body and/or body parts.

There is an irony that the 1988 Act was passed in order to address concerns that the 1951 Act was culturally insensitive, particularly with regard to delays and the release of bodies. Clearly, parts at least of the reasons for passing the 1988 Act have been unsuccessful, and that reflects poorly on the drafting of the 1988 Act.

The report of the Law Commission, which was issued in August 2000, identified a number of concerns that it felt needed to be addressed. I am pleased to see that most of those have been picked up in the bill. The ones that the commission particularly identified were that coroners tended to be the poor relations of the judicial system and that had flow-on consequences, obviously with the self-esteem of coroners through to their perception in the public’s eye. Coroners were paid pitifully and were often senior partners whose firms subsidised the State in allowing them to attend to coronial duties. Because of the variable quality of coroners the commission recommended that there should be legally qualified coroners and that the appointment process and criteria ought to be far more specific, and that there needed to be ongoing training of coroners. It also recommended a chief coroner who would oversee the process and provide some degree of consistency, and would have a duty to inquire into the implementation of recommendations that were made and endeavour to ensure that they were carried through, and that there ought to be more diversity of cultural recognition in the appointment of coroners, particularly Māori coroners.

It also recommended that there should be a regionalisation of coronial districts and a reduction of the number of coroners and the appointment of full-time coroners, and that salaries ought to be fixed by the Higher Salaries Commission. In that regard I know that clause 100 provides for the Remuneration Authority to make that decision. I guess it will achieve the same ends, in terms of raising the standard of pay. The commission recommended that there be no change to the JP role, and that is something that has not been implemented in the legislation. Indeed, the role of JPs will expire. It recommended that there ought to be an annual report to Parliament. That again is something that is not in this bill. There should be greater involvement by family with regard to the retrieval of body parts and retention of body parts, and the retrieval of the body. There should be prior notification by coroners where there will be some adverse comments concerning the dead person, or indeed, persons who were living, so that there was some warning of that and opportunity to comment prior to it becoming public.

The commission also recommended guidelines as to the publication of suicide details and a national database, so that there could be consistency. As I said, I am very pleased to see that most of those things have been picked up in this bill, and this does appear to be quite a thorough attempt to overhaul the whole coronial process.

However, there are a number of issues that I can see we will have to deal with in the select committee, and I am looking forward to that inquiry and the debate that we will have, albeit it being relatively dry law as far as the public is concerned. The first one is that whole area of the reporting of details of suicides. Clause 61 does provide a prohibition in terms of that reporting, and there has been quite a lot of debate in the media over the last few years as to the extent to which that should happen. Certainly, the media—not surprisingly—are against the whole idea of a restriction on the reporting. No doubt they will be making fairly weighty submissions to us to try to free that up. We will have to look at some sort of balance there once we have addressed both sides of the question.

I note in 1999 the Government released a document Suicide and the Media as part of the New Zealand youth suicide prevention strategy. I was pleased to see that Canterbury University embarked on some research in March this year to look at how the media had picked up on that and adopted it. No doubt that will also come before the committee, and it will be interesting to see the extent to which there has been a voluntary picking up by the media of those suggestions. I note that England, Wales, and Australia do not have a ban on the reporting of suicides, and that may be of some influence to us.

Other areas include the specialisation of coroners, and particularly their relationship with the air accident investigation authority and other similar authorities that have specific jurisdiction in terms of deaths. I know that the latter are a little apprehensive about the idea that coroners will have an overarching jurisdiction that will cover their patch. However, at this stage my view is that we do need coroners to have the overall responsibility, and that is something we will have to work through. Coroner appointments of lawyers with 5 years’ standing, instead of 7 years’ standing, in my view sends at this stage the wrong signal that we undervalue coroners. I cannot see any reason why they should be any different from all other judicial appointments, because it appears to me that they are very similar to Family Court judges in the sensitivity that they have to apply.

Just very briefly, the whole idea of JPs being excluded, and the need for an annual report from coroners, I think is important. I picked up Judith Collins’ comment about full-time coroners and whether part-time coroners do provide advantage. There are a number of issues that we will need to deal with. Certainly, I look forward to the debate and the discussion we will have in the select committee.

I rise to make a brief contribution to the first reading of the Coroners Bill. Coroners inquire into certain deaths to uphold human rights. Coroners seek to establish the cause and circumstances of death in cases of sudden or unexplained deaths, and deaths in other special circumstances, such as where the person was in the care of the State. The Law Commission became aware of concerns about coronial practice while consulting with Māori for its review of succession law, and wrote a separate report on the Act that was tabled in August 2000. This bill draws on both the Law Commission’s recommendations and the Government’s review. I suggest that the House should support this through to a select committee.

First of all, I am intrigued by United Future members. They stand in this House and say that this bill should have been given higher priority than some of the social engineering bills the Government has pushed through. Well, what are they doing about it? Why do they not use a bit of their clout and tell the Government that if it wants supply and confidence from United Future, it should at least put some of these bills higher on the Order Paper? What have those members signed up for? When they leave this House in the next few months, legislation on prostitution law reform, on civil unions, on a smoke-free environment—which they all voted against—and on gambling will have been passed. They voted for the Gambling Bill, but they did not attend the select committee or read one submission on it. As a result of that bill being passed, more and more people will be involved in gambling. That will be their testimony when they leave this House. When they leave, the Government will have got through everything United Future does not want. They will have sat there, waving their stake in the air. I cannot actually see United Future members from here, but I suppose they are there somewhere!

New Zealand First will support this bill. I am personally pleased to support it, and I will tell the House why. My support centres principally on five clauses: clause 53, “Decision whether to open and conduct inquiry”; clause 54, “Duties of coroner who decides not to open inquiry”; clause 55, “Coroner may decide to open inquiry despite initial decision”—and I hope that is retrospective and can go back a few years; I will explain why, in due course—clause 108, “Coroner may call for investigations or examinations or commission reports”; and clause 109, “Coroner may refer death to other investigating authorities”.

I will illustrate my reason for wanting to speak about those clauses, with an example. This is a very serious example. It moves away from the bill, but I think it will illustrate my concerns very, very vividly. It was 29 December 1996, on a calm night on a flat sea that the Sydney Express left the harbour and ploughed into a fishing vessel, the Maria Luisa. Five men died. The police held an inquiry, the Marine Safety Authority of New Zealand held an inquiry, and the Transport Accident Investigation Commission held an inquiry—all, in theory, independent. But the police told me—and were straight upfront—that they were heavily dependent on the Marine Safety Authority. They told me, to my face: “Convince the Marine Safety Authority that we’ve got it wrong, because the assertion of the family and the experts giving the family advice is that the findings of those inquiries were wrong.”

The local coroner delegated the responsibility to the deputy, and quite rightly so because of conflict of interest. The deputy coroner in this city of Wellington said no inquest would be held, because there had been several inquiries—those of the Marine Safety Authority, the Transport Accident Investigation Commission, and the police. His adviser was a qualified master mariner who had been a harbour pilot in Auckland but for many, many years had been a senior executive—indeed the president—of the Merchant Service Guild, which is the officers union. That is the scene.

That evening, personnel on the Sydney Express, the container vessel that left the port, saw the Maria Luisa in plenty of time—some several minutes before the collision. We believe that for a number of reasons the Maria Luisa did not see the Sydney Express, not least because of the backdrop of lights when coming into the harbour. The Maria Luisa’s radar was not working.

On board the Sydney Express was the captain, a fully qualified master mariner, and a third officer who was also a master mariner. They did not take a bearing of the Maria Luisa to see whether it was on a collusion course. They did not even plot its course on the radar. They did not even look at it on the radar. They did not even lift the binoculars out of their case to see what kind of ship they were approaching, and they did not use VHF or the beacon head. The Sydney Express hit the Maria Luisa, and five men died.

I have found out since that the investigations between the Transport Accident Investigation Commission and the Marine Safety Authority were not as independent as they should have been. We found out that the police admitted they did not hold an independent inquiry. We know that evidence given by the master and the third officer of the Sydney Express to the Transport Accident Investigation Commission was passed to the Marine Safety Authority months before the authority made a ruling. That smells like collusion.

I can see that you are signalling me to get back to this bill, Mr Speaker, but I am suggesting to you that these clauses will capture what I am trying to outline. We found out that there was a flow-on of evidence from the commission to the authority, and the Ombudsman is at this moment in time—and has been for some months—trying to determine for me who passed that evidence. He has now told me he cannot determine that, or how or what the evidence was. I have asked for a look at it.

The clauses in this bill will, I hope, ensure that the family, or any family in future in a predicament like this, will get an inquest. I hope that clauses 108 and 109 will empower the coroner, if he or she says there will not be an inquest because of an inquiry, to determine for himself or herself that any inquiry was totally independent and above board, and—when five men die—that it was open to public scrutiny. By that I mean that the witnesses will be subjected to cross-examination from, in this case, the family. I hope these clauses will do that.

In my view, they are not strong enough to achieve that, and my one little hope is that the select committee will toughen them up. I know that my colleague on the committee will do his best in that endeavour. I hope that clause 55, “Coroner may decide to open inquiry despite initial decision”, will be retrospective. I hope at the very least that when this bill passes, a coroner in Wellington will listen to the concerns of the families and of the experts who have been helping them and determine that the matter should be inquired into.

Five men died, and those families have not had closure. Five men died, and those families are still suffering. Members should think about how those families will be feeling on 29 December this year, and on that date in future years. If we cannot do anything else for the people of New Zealand when death occurs in these sorts of circumstances, we can at least ensure that they get justice, that they get listened to, and that we get to the bottom of the matter. In the issue I have raised, the ex - harbour master and one of the senior pilots in the port concerned have been advising the families, and they have advised me and the families that the inquiries held by the Transport Accident Investigation Commission and the Marine Safety Authority got it wrong. That is not good enough, and I hope this bill will help us fix it.

Bill read a first time, and referred to the Justice and Electoral Committee.