Coroners Bill

The debate on this part includes schedules 1 to 5.

Part 4 deals with the appointment and powers of coroners and with the general administration of the coronial system. A very important change introduced by clause 95 is one of the key reforms of this bill, which is that there is to be a chief coroner. The appointment is to be for a period of 8 years, and it is interesting that that person will not be eligible for reappointment. Hopefully, the chief coroner will be the person who develops national standards and who will provide support to other coroners.

I refer members particularly to clauses 120 and 121. They provide that the chief coroner will be able to issue practice notes. The sorts of things that are contained in the practice notes are set out in clause 120(2). The Justice and Electoral Committee inserted a provision requiring a coroner to have “regard to any practice note … that is relevant to the performance or exercise of the function, power, or duty.”

Another key reform introduced by the bill is the introduction of a full-time coronial service. I refer members to clause 98, which provides that coroners are to “… act full-time unless authorised to act part-time”. I ask members to note, however, that clause 94 provides for the appointment of relief coroners.

A very interesting and important clause, for reasons that will become apparent later in my contribution, is clause 97. The clause provides that a coroner “must not undertake any other paid employment or hold any non-judicial office (whether paid or not) unless the Attorney-General is satisfied that the employment or non-judicial office is compatible with the coronial office.” That is perhaps another indication of the judicial nature of the coroner’s task.

Most of the powers relating to coroners are set out in clauses 107 to 121, and that group of clauses also deals with the immunities of coroners. It is important to note that coroners are to have the same powers, privileges, authorities, and immunities as a District Court Judge who exercises jurisdiction under the Summary Proceedings Act 1957. A coroner “who is not a District Court Judge has, at all times, the same immunities as a Judge of the High Court.” Again, this emphasises the judicial nature of the office.

It is important to emphasise that a coroner is not a mere administrative tribunal that implements Government policy. One can see that an inquest is a judicial hearing, and that coroners have powers that are generally recognised as a mark of a court of record.

I refer particularly to clauses 108 to 111 because that group of clauses sets out where the coroner may, for example, call for investigations or examinations, or even commission reports. Indeed, clause 110 provides that the coroner may issue a written notice that requires a person “to supply information or documents or other things”.

I will briefly touch on clause 112, which provides for warrants in the event that such written notices are not complied with. Yet these warrants are to be issued by District Court judges. I think that is odd, and I raised the issue in the select committee because I think a coroner should be able to issue such a warrant. Again, it is interesting to compare that with the United Kingdom legislation, under which coroners can do exactly that. Maybe the Minister Rick Barker would like to respond, but why he thinks a legally qualified coroner is not up to issuing such a warrant escapes me. The same applies to a warrant issued under clause 116, which relates to warrants for the removal of bodies.

The expenses and penalties clauses follow the provisions of the Coroners Act 1988 and the 1999 amendment, and I am not going to spend too much time on those, but I do want to reflect on certain of the transitional provisions. They are contained in schedules 1, 2, and 3. I want to say something about schedule 3, as National is very unhappy with clause 3 of that schedule. Clause 2 of the schedule provides that on repeal of the 1988 Act every former coroner vacates office, but clause 3 provides that no former coroner is to be entitled for compensation. It is important to look at the scheme of the 1988 Act to show how iniquitous that is, because under the 1988 Act there is no doubt about the judicial nature of coronial office. Coroners were, for example, appointed by the Governor-General under warrant. The coroner’s powers and immunities were similar to those contained in this bill. The removal provisions in the 1988 Act, although not as strong as those contained in the Constitution Act in respect of High Court judges, nonetheless also emphasised the judicial nature of the office.

It has been well established that an inquest is a judicial hearing, and under the 1988 Act coroners had powers that were generally recognised, as I said earlier, as marking out a court of record. The National members raised this issue at the Justice and Electoral Committee. The Labour members, I regret to say, could not see the problem. But the coroners had engaged the services of Mary Scholtens, who is a former Deputy Solicitor-General, a Wellington Queen’s Counsel, and one of New Zealand’s leading public lawyers. She saw there was a problem. She said this was a situation where Parliament should have regard for constitutional conventions surrounding the independence of judicial officers, and the potential for the undermining of those conventions.

Interestingly, today all members had the latest Law Commission report, on access to court records, made available to them. It was reported to the Minister of Justice on 30 June this year. The report emphasised the fundamental importance of judicial independence and stated that that was a core principle of the New Zealand constitution. It also stated that one of the essential elements of judicial independence is that the salary of judges cannot be reduced while they are in office, and that they enjoy security of tenure.

This very interesting report refers to a decision of the Canadian Supreme Court, which described three conditions that are essential to judicial independence: security of tenure, financial security, and institutional independence of judicial tribunals regarding matters affecting adjudication. That is why National is so concerned about clause 3 of schedule 3.

An alternative view was raised by the Crown Law Office, which referred to the decision in Claydon v Attorney-General. That case concerned the lawfulness of the disestablishment without compensation of Employment Tribunal members by the Employment Relations Act 2000, but the case is not relevant to this situation. Coroners are in quite a different position from that of the members of the Employment Tribunal, which was what was considered in the Claydon case. They were on fixed-term contracts and had very different powers and functions.

As Mary Scholtens observed in her opinion to the coroners’ counsel: “The distinction between coroners who are judicial officers, and administrative tribunals, such as members of the former Employment Tribunal, who don’t attract the same constitutional protections, is critical.” It is that concern that motivated the National Party to issue its minority view, and that is why we introduce the amendment under my name.

I say to the Minister that we are very disappointed that he has refused to look at this matter closely, because it raises some very important issues. As I said in the debate in the second reading, it is interesting that in the coronial legislation that is about to be introduced to the United Kingdom Parliament, provision is made for moving towards a full-time coronial service, yet the Lord Chancellor may make regulations providing for compensation to be given to those coroners who lose office. This is not time-wasting; this is an important constitutional principle. Quite frankly, I think that if Sir Geoffrey Palmer, who is now a distinguished leader of the Law Commission, was still Attorney-General and Minister of Justice, he would not have a bar of it.

I am very disappointed that the Minister is not prepared to look at this issue openly, because it is one that goes to the very heart of judicial independence. As we develop the debate in the Committee tonight, the Minister will see there are some very real concerns, which he simply brushed aside in a cavalier and, I hasten to add, arrogant manner.

The previous speaker, Christopher Finlayson, who effortlessly sketched in this important argument, has suggested that the mind of the Minister Rick Barker is closed. For my part, I express the view that his mind may still be ajar and that, in the course of this argument, he will see there is real merit, and no disbenefits, in acceding to what I hope in the future will be called the Finlayson amendment.

National supports this bill. We have made that clear throughout, and we have sought to focus on the main issues. This amendment is a main issue. I invite the Minister to reflect very carefully, before it is too late in the context of the parliamentary process, whether there is merit in the amendment that is proposed. Of course, what we are talking about, what is the crunch issue here, revolves around clause 132 and the transitional provisions. It focuses directly on schedule 3, and there are two clauses in schedule 3 that are relevant. First of all, clause 2 provides that on the repeal of the Coroners Act every former coroner vacates office, and the other provision that is critical is clause 3, which provides that no former coroner is entitled to compensation for loss of office.

I do not want to repeat the arguments Mr Finlayson has put carefully before the Committee, but I think it is important to record that under the existing Coroners Act coroners were appointed by the Governor-General by warrant and had tenure until reaching the age of 68, which was later modified to 72. Until 2004, when a change was made to the legislation, coroners had: “ … the powers, privileges, authorities, and immunities of a District Court Judge exercising jurisdiction under the Summary Proceedings Act 1957.” It is very significant to record that, reflecting the protection given to their judicial office, they could be removed only for inability or misbehaviour. Those are not quite the words that are contained in statutory provisions relating to the appointment and removal of judges—not now—but, nevertheless, they indicate in a clear and unmistakable way that these coroners are to have tenure.

It seems that the Ministry of Justice has taken the view that cancelling coroners’ warrants by statute is not unconstitutional. But even if that view is correct, and I do not accept that it is, particular care clearly needs to be taken to respect constitutional provisions that have as their purpose the protection of the separation of powers doctrine, which is the separation between the legislature, the executive, and the judiciary.

It is also very important to note that a lot of these coroners have given substantial service. For example, those who have been lawyers have made a deliberate choice whether to continue in their legal careers, in the full sense of that word, or to make themselves available for the public service that is involved in being a coroner, often at light remuneration rates. I am sure a number of those coroners would not have made the choice if they did not believe, as they had good reason to believe, they had security of tenure. Now, the Government is going to take away that tenure right without compensation.

In these circumstances I urge the Minister to consider the issue of compensation. We are not talking about big amounts of money. We should be constitutionally prepared to face our responsibilities. We should accept that the importance of the separation of powers doctrine is never to be underrated. That is why, in the short amendment that Mr Finlayson has put before the Committee, he is proposing that there be an ability to pay compensation.

Lest the Minister thinks National members are on a flight of fancy, I hasten to reassure him that that is not so, and that there is a solid legal base for the argument that compensation should be paid.

I am confronted now with two arguments. One is from Mr Finlayson, who says that my mind is closed and that I have cavalierly brushed aside members’ arguments on the Coroners Bill without due regard, and the other is from Richard Worth, who with his eloquent and persuasive tones cunningly tries to inveigle me into a position of compromise and negotiation, who says that all is possible, and who puts before us a choice.

I want to make some observations. Firstly, I am really impressed at the industrial astuteness of National members in becoming self-appointed job delegates for coroners. I think that is really good. Secondly, if Parliament sets up a particular process, as it is entitled to do, then of course at some stage, if it wishes, it is entitled to put that process aside. In fact, that is partly what it is doing. Parliament is modifying and changing a process, as is its right. Otherwise, it surrenders its sovereignty—and Mr Worth would never agree to Parliament surrendering its sovereignty, I am sure.

I draw Mr Worth’s attention to the wording of the bill—let us read it. As a shrewd and cunning lawyer, I think he is capable of reading it. The provision states: “No former coroner is entitled to compensation for loss of office as a coroner …”. They are not entitled, as a right. The words do not state: “No coroner shall ever be paid compensation.”

💬 Chris Auchinvole: Aha!

Mr Auchinvole is obviously much further ahead than the two lawyers; he has cottoned on to it immediately. The provision does not preclude the possibility absolutely; it leaves the matter open. It states that a coroner is not entitled to an absolute right, and I want Dr Worth to reflect on those words and try to figure out whether he can draw a straight line between the dots.

Thank you, Madam Chair, for allowing me to take a call on Part 4. I too want to discuss in more detail the disestablishment of current coroner positions. The matter has been covered by my colleagues from a constitutional point of view, and also from the point of view of compensation. My slant on it, though, is more from a practical point of view—one of justice and fairness.

We know that under the new system approximately 20 full-time, legally qualified coroners would replace our existing approximately 60, mostly part-time, coroners. The commentary on the bill advises that, yes, current coronial positions would be disestablished. It states: “We were advised that any sufficiently qualified coroner would be eligible to apply for re-employment as a full-time coroner under the new regime.” That is the point I really want to elaborate on.

Many part-time coroners at the moment are practising solicitors. They have a full solicitor’s practice, but they may not necessarily want a full-time coroner’s job. They have many years of experience, yet they are not going to get any redundancy or compensation. But, worse than that, our coronial system will lose a lot of that experience and wealth of knowledge.

The Coroners Bill stipulates the qualifications that coroners must hold. A coroner must have held a practising certificate as a barrister or solicitor for at least 5 years. There are examples of hugely valued and experienced coroners throughout New Zealand who have been coroners for many, many decades. They have that depth of knowledge, experience, and local knowledge around their areas, but they do not necessarily have a law degree. So they are being unceremoniously dumped by this bill, without being given any sense of recognition whatsoever.

That situation is particularly pertinent in many rural areas. I have been to Gisborne to talk about the situation there, and I know that coroners on the West Coast are in a similar situation. These regional and rural areas are unique and have their own characteristics. In the tragic circumstances around death, it is important that coroners have some local knowledge of the people and their circle of acquaintances, which is knowledge that a travelling coroner, perhaps, might not have. Some of those highly experienced, long-term coroners feel—and I have some sympathy for them—they have been discriminated against.

I have a letter from a coroner in Westport, and he refers to other areas like Ruatōria, Motueka, and Kaikohe. I have already mentioned Gisborne. He has written a very comprehensive letter, which details some of his grievances, if you like. I think the best way to do him justice is to quote from his letter. I will obviously quote selectively; I will not read the whole letter. The letter states: “The proposal is that we be dismissed without compensation because we do not hold a law degree and have not practised as a lawyer for at least 7 years. In my case I was appointed by the then Minister the Hon Geoffrey Palmer, later Prime Minister, now Sir Geoffrey Palmer, and shortly to be President of the Law Commission. I was going to become a lawyer, like the other 58 coroners with law degrees who are my fellow coroners, but in those days Latin was a compulsory subject and my school in Westport did not teach Latin. However, I did work in the head office legal section of the Public Trust Office in Wellington for quite a number of years, prior to coming back to Westport to practise accountancy. I am currently a retired Fellow of the New Zealand Institute of Chartered Accountants, a member of the Chartered Institute of Secretaries, and a Fellow of the Institute of Directors. I have also been a justice of the peace for 38 years, the first 20 or so being constantly engaged on the bench at the Westport District Court. In those days justices carried out a great many more duties than they do today. At a coroners conference a few years ago, the then Minister the Hon Phil Goff said that all the new appointments since he took over were qualified solicitors. I have no quarrel with that, as he was talking about new appointments replacing a vacancy or vacancies.”

The coroner who wrote that letter has had 20 years of experience, but he does not have a fixed contract. He is not covered by provisions in the Coroners Bill, so he has no right of redress. He has no law degree, because they did not teach Latin in Westport in those days. The enacting of this bill will mean that Westport and other areas within provincial New Zealand lose that hugely valuable knowledge base and experience. What is worse is that these coroners, who have given a tremendous service to the community, did not need to be lawyers in those days. They do a great job as coroners now, but they are being dumped without ceremony by the callous provisions of this bill.

There are transitional provisions, and it would have been very, very simple for those transitional provisions to have allowed these talented, experienced, dedicated, but non-legal coroners to continue to benefit and give value to our coronial system in New Zealand. Unfortunately, that is not the case, but it would not take much—I hope the Minister will take a call on it—merely to amend the transitional provisions to allow for suitably qualified, existing coroners to continue to be of service to the community.

I think my colleagues have canvassed the arguments pretty extensively with regard to Part 4. What should be commended in the Coroners Bill is the fact that it will establish the office of chief coroner. Although National has a number of reservations about the disestablishment of 44 posts with no compensation, there are some admirable features to the new structure. Having a chief coroner and introducing some uniform professional standards we do not see as being a bad idea. The good thing about the bill is that it will introduce some uniformity across the country.

💬 Hon Rick Barker: Oh, it’s another good idea!

If the Minister would just listen, I might even offer some more praise for the bill. People are looking to the bill for uniformity of practice across New Zealand. New Zealanders have to be confident that when they come into contact with the coronial system they will be treated the same wherever they go in the country.

Nevertheless, we need to have a great deal of sympathy for those long-serving coroners for the unconstitutional way in which they will be unceremoniously dumped from their positions, with absolutely no compensation. We have to ask who on earth would want to be a coroner. It is a thankless job. Coroners listen all day to stories of death, they confront sad and obviously distressed families in their time of greatest need, and they are often called upon to make controversial judgments, then hung out to dry in the media. Many of these people, after 40 years of service, will be told: “Thanks very much for coming along. We were very happy to have you while we needed you, but, sorry, you won’t be required under Minister Barker’s new regime.” I guess the question for the Minister is whether he is prepared to offer ex gratia payments to those people. Would the Minister like to take a call and answer that very question?

I think that with all the years of thankless service these people have given to the country, they deserve far better than what they will get under the Coroners Bill. These people have balanced their sense of social responsibility to give service to their communities while maintaining other professional duties. Many have been ex-policemen, many have tried to maintain a legal practice at the same time, and medical practitioners have also fulfilled the role. So, very often, the role of coroner has been taken on by people who are probably the best qualified in their community, and who take up that mantle because, frankly, no one else is prepared to do a very thankless job that has been pretty poorly rewarded. A lot of coroners could have made a lot more money doing other things, but they have been prepared to do a service to their community.

I ask the Minister to think carefully about whether he is really firm on the provisions of Part 4, and whether there might be some leeway there so we can recognise the service of these people and not do away with them in such an unconstitutional manner. Frankly, if we can do away with the coroners in this manner, we have to ask who might be next.

Looking through some of the editorials, I see that it is quite clear that press opinion is largely supportive of these coroners, especially in some of the rural areas. The Nelson Mail states that the dismissal of these coroners is unconstitutional. It tells the story of Mr Smith, a Coroners Council member, who says that coroners have not had a pay increase since 1991. Someone who has been in that job for the last 15 years would have to be pretty keen—

💬 Hon Rick Barker: That’s not correct.

Is the Minister accusing the Nelson Mail of libel?

💬 Hon Rick Barker: Fixed that in the last Budget.

And what was it raised by? The Minister cannot just say it was raised. He has not got a figure; it is just a reflex response from that open, empty mind.

💬 Hon Rick Barker: It’s all public information. Get on the Internet. Google the answer.

I am not going to get on the Internet; I am giving a parliamentary speech. That coroner, Mr Smith, was concerned that the move could set a precedent for similar changes in other courts. If we are going to do this to the coroners, who will be next? That is the question.

I also want to speak to Part 4 of this bill. I say to the Minister for Courts that I do not want to play games in Parliament by joining the dots, because this part of the bill, in particular, has serious consequences for some very able members of the community throughout New Zealand. They deserve more than the sort of nonsense we have just heard from the Minister in charge of the bill.

I want to talk seriously to the Minister about transition provisions for the disestablishment of coroners. I particularly want to talk about the East Coast. I was not on the Justice and Electoral Committee but I understand that the Law Commission began this process with a review, and that it specifically mentioned areas like the East Coast and the West Coast, to which my colleague Kate Wilkinson has referred. They are unique areas. I brought Kate Wilkinson up to Gisborne and we met with two of the three coroners there and discussed some of their difficulties with the proposals in this bill. The coroners in Gisborne and Wairoa are part-time. The Gisborne coroner is a well-respected barrister and solicitor who has been in the job for decades. Gisborne is 2½ to 3 hours travelling time from the nearest larger centres either side. The idea of losing that member of the community and the work he does is causing quite some dismay in Gisborne.

But the area I really want to bring to the Minister’s attention is the coast. Up there, based in Ruatōria, is a part-time coroner—he is not a practising barrister or solicitor; he is a JP—called Hughie Hughes, who is a very well-respected member of the community. He is based in Ruatōria and, as the Minister knows, that area of the East Coast has large tracts of land between very small and very poor communities. The roads are bad. Members might ask why on earth that would be of importance to a coroner. We actually said to him: “So what? Travel time doesn’t seem to be a huge issue.” He made the point that not only are the townships small and quite a number of hours distant from each other but they are manned by single policemen in one-person police stations with no back-up and often an inability to deal with all the cases. So the coroner travels and is a huge aid to the police up and down the East Coast.

The example he gave of the position he holds in the community, which is almost a unique position for a coroner, was the tragedy in Ruatōria of the death of five young people in a car accident. The community was in shock and there was considerable angst between the local police and local families, who of course wanted the bodies of their young and who were in a terrible state of grief. The coroner played the part of a totally independent person who had the respect of different iwi and hapū and of the police. The role he played there was one of a community service.

The service of those sorts of people in some quite specific areas in New Zealand is important. The role cannot be played by a person who comes in from the outside—maybe from Hawke’s Bay, which would be 5 hours’ distance—has no knowledge of the people concerned, and does not have the confidence of the local people, who are mainly Māori people, and therefore may not have the respect that is given to a person such as Hughie Hughes. I say to the Minister that these are unique cases. They are not something that will be found right throughout New Zealand, and the Law Commission made that point itself. So my role here is to ask the Minister that when he is looking at the transitional provisions and thinking about how he is going to put this law into place, he considers the uniqueness of the situation of those part-time coroners on the two coasts.

I move, That the question be now put.