Coroners Amendment Bill

I want to strongly oppose clause 32 of this bill because it takes away from the families of New Zealand Defence Force personnel killed in action the right to have independent and open scrutiny of the circumstances of the death of their loved ones. This is not what the families of Defence Force personnel want, and there is no justification for this clause to go into the bill.

I want to quote, firstly, from a young woman whose name is Sarah Erb. She is the partner—or was the partner—of Corporal Luke Tamatea, who was killed in Afghanistan in August 2012. What she said was that the coroner’s report into his death had helped her and Luke’s mother to get answers and to gain closure. She said: “Without that report we’d feel quite ripped off … That’s our loved one and we should know what has happened.” I want to put to the Minister in the chair, Nick Smith this: why should the loved ones of those who die in the service of their country be denied an open and independent inquiry into the deaths of those service personnel members? We have that at the moment.

The fact that we have this amendment before the Committee is because the Defence Force took umbrage that an independent person could look into the death of somebody killed in action and maybe reflect on issues that pertain to national security or military tactics. That is not what the report that caused this particular change actually did. You can read coroner J P Ryan’s report, and it is a straightforward explanation of the circumstances of death of three people who were killed on that day, 12 August.

The families of those military personnel members have the right to have such an inquiry. Without the coroner’s right to inquire into the death of somebody killed in action, there is no mandatory report that is required into those deaths. What usually happens, however, is that the Defence Force will set up a court of inquiry into it. What is wrong with that? Well, what is wrong with it is, first of all, it is in secret, and, secondly, it is not done independently. Defence Force personnel members themselves fear that such a court of inquiry could be more concerned not with what caused the deaths of those soldiers, but with the Defence Force protecting its own reputation. This is an inquiry by a body into its own actions or lack of action, and that is exactly what the families are concerned about. Sarah Erb said that she did not receive any information back from the military court of inquiry. How can that be satisfactory for somebody who has lost the person whom they love in conflict?

It is not just the families, although they, in my mind, are the most important people in this, but also former Chief Coroner Neil MacLean, who said that this is a backward step. He said this proposal is out of step with other countries. I want to read to Minister Smith what Chief Coroner Neil MacLean said. He said: “It flies completely in the face of what the Australians and the English have been doing for a long time, which is real co-operation with the coronial system.” He said: “Next of kin sometimes aren’t too happy with military investigations. For better or worse our society has said it’s important to have some independent judicial officer with sufficient power say ‘what is actually going on here? What are the facts? Are there any lessons to be learned?’ ”. He said: “The moment you start to erode that power and say that’s only if it’s not a combat death, that’s representing a watering-down [in the power] of the coroner.” So I want the Minister to tell this Committee why he is ignoring the recommendations of the former Chief Coroner and why he is acting in a way that flies in the face of what the families of Defence Force members who die in combat actually want.

This was not the only option in front of the Government. I have read the regulatory impact statement. I hope the Minister has, because he will see in that that there was another option. If the Government is genuinely concerned about national security issues, why not have the default position that the coroner will hold an inquiry, and then give the Attorney-General, if it transgresses into matters of national security, the right to suppress that information? That would automatically allow the coroner to do what the coroner to date has always been allowed to do: inquire independently and make his or her findings open to the families, the public, and the people of New Zealand. That was something that the regulatory impact statement said would find an appropriate balance—a balance between the need for independent scrutiny and the need to protect national security issues.

I have an amendment before the Committee that says that option D of the regulatory impact statement should be the option that this Committee votes for, not the option that the coroner is ruled out unless the Attorney-General says that he can do it. When I put that to the select committee examining this bill, the Justice and Electoral Committee, there was on all sides sympathy for that position. That position was not adopted by the select committee because the Minister said no. Well, I want the Minister in the chair to get up and publicly justify why the Government is suppressing the facts of deaths in these circumstances, when that is not what the families want and it is not want the coronial system says is necessary.

I think this bill is a backward step. I think this bill is not about protecting national security; it is about covering up the circumstances that might prove embarrassing to the Defence Force or the Government, and that is not something that is tolerable here. The report that was given to the Chief of Defence Force, which I got under the Official Information Act, said that this is not even necessary. It said that concerns were raised that the issues that were driving this change are addressed by amendments in other parts of the Act. It says that this is based on one particular incident, and it is not the norm. It says that this will create a negative perception from families and the media about how deaths will be investigated. This is the information being given to the Chief of Defence Force. So it raises concerns about the option that the Government has taken. It says that courts of inquiry are not mandatory for deaths by hostile action. That means that there will be no mechanism of mandatory investigation into deaths of this type.

Is that a tolerable situation to have, where our men and women die in combat and there is no mandatory system to investigate, in any way, the decisions that led to their deaths? I think there has to be such an investigation, but it should not be a closed investigation by top brass in the military looking at their own decisions. How can that be independent? How can that gain the confidence of the families and the people of New Zealand if it is not even out in the public arena? This is something that deserves to be in the public arena. If we do not learn from our mistakes, we are doomed to repeat them. You learn from your mistakes when you openly and transparently investigate them, and make that public. Then there will be pressure on the system if there is some inadequacy. It might be that there is inadequacy in the way people are trained or in the way they are equipped, or whatever. But we have the right to know that, if it is our families who are being put at risk and who are dying in combat.

The regulatory impact statement said that if the option I am promoting in my amendment was adopted, it would find balance. So I want the Minister to say why the Government is taking away that balance. Why is it taking away from those families the right to have an independent scrutiny of what happened when their loved ones were killed? We have had from Government no answer to that question—no real justification for what it is doing. I am asking, genuinely, the Minister to please consider the alternative option that the Defence Force said to its Chief of Defence Force would be OK in covering some of the concerns it had and that the regulatory impact statement said found a proper balance between the needs for national security and the needs of the family to be satisfied that everything that should have been done was done, so that they are allowed to know why they lost their loved ones in action.

I want to begin, first, by supporting everything that my colleague Phil Goff has said around why we feel so strongly about the amendment that he has tabled, which essentially reverses the onus as it currently stands in regard to the coroner’s involvement in deaths offshore. It was a significant debate at the Justice and Electoral Committee. But what I would like to focus my contribution on, for this part of the debate around Part 2, are two elements of the Coroners Amendment Bill as they relate to what the coroner is able to make recommendations on and the follow-up response that other agencies are required to make to those recommendations, which were two core debates that the select committee had.

First, I do want to acknowledge though that we do have a backlog of cases being faced by our coroners and, much more importantly, by the families affected by those coronial inquests and inquiries. We acknowledge the heartache that those delays cause. We do understand the ambition, the goal, behind this amendment bill, but for us the test always had to be to what extent we are actually forgoing some important checks and balances that the coroner has a role in ensuring are in place in order to reduce that workload. We feel the bill has gone too far in that regard, and simply needs to resource the coroner better.

New section 57A, inserted by clause 30, particularly highlighted that issue for us. The Chief Coroner did comment on this part of Part 2. This is the part that sets out what a coroner is able to make recommendations around, and it states: “(1) A responsible coroner may make recommendations or comments in the course of, or as part of the findings of, an inquiry into a death. (2) Recommendations or comments may be made only for the purpose of reducing the chances of further deaths occurring in circumstances similar to those in which the death occurred.” It goes on to set out some of the criteria for making recommendations. The first, which I think was actually the sticking point, states, in new section 57A: “(3) Recommendations or comments must—(a) be clearly linked to the factors that contributed to the death to which the inquiry relates;”. It must be clearly linked to the factors that contributed to the death to which the inquiry relates.

I have a couple of examples where I have concerns as to whether we are narrowing the ability of the coroner to do their job. An example I will use is a similar example to what was used at the select committee. If there is a finding by a coroner that the core cause of a road accident was the over-consumption of alcohol, for instance, the major factor that contributed to that death was clearly the consumption of alcohol then leading to impairment of the driver, causing the accident. What if that accident also occurred on a bend of road where there had been several other accidents in a short space of time, clearly indicating, perhaps, some danger around that particular piece of roading? It could be argued that that was not necessarily the direct cause of the accident, given the role that alcohol would have played, but it may have been a factor.

A similar example was used, from memory, around a deliberate road accident, but I think the point is the same. In fact, we are drawing a fuzzy line here as to what a coroner can determine to be a direct factor, a direct cause of death, or not. We may be limiting their ability to draw to our attention additional factors that may be important in that case. I think you will find that coroners frequently find situations where there will be supplementary causes around the edges where it is difficult for them to distinguish whether or not it was a primary factor clearly linked to the death, but it still might be relevant to the death. It may well be that the Minister in the chair, the Hon Nick Smith, wants to clarify that that is not the intent of that new section, but it was certainly in the interpretation from the coroners, and surely that is what we should be concerned with.

I want to come to my two Supplementary Order Papers (SOPs) because they are covered off in the next new section 57B, in clause 30. This is something that I feel very, very strongly about. They relate to the recommendations themselves that coroners are able to make. They are set out in new section 57B. Here it talks about the requirement for a coroner to consult certain persons or organisations on recommendations or comments that they are going to make. It is very explicit that if there is an organisation or person to whom a recommendation directly relates, then the coroner must notify the person of the proposed recommendation or comment. Although there is an obligation on the coroner to notify those individuals, there is no reciprocal requirement on those relevant organisations to respond to a recommendation.

This has been the subject of a reasonable amount of debate, particularly amongst the coroners—actually, not “debate”. They have a very clear view on this, and the view that they presented to the select committee was that if a coroner makes a recommendation, surely the least that we could ask for is a response from the relevant organisation—not a requirement that they adopt the recommendation, because there will be recommendations that, from time to time, an organisation or an entity disagrees with. But surely the least that we could require is a response. Where is the harm in that?

I really seek from the Minister a response to that question, because, to date, I have seen nothing that sets out a reasonable argument as to why we would not want a response after all of that investment, that time, that energy, and the submissions that were made. The work that goes into a coroner’s report is substantial—and then we do not even require a response. We would not do the same, for instance, to a Law Commission report. We might be a bit pithy in our response, but at least we give one. Why would we not require that here?

There are some very, very good reasons that I have set out in Supplementary Order Papers 146 and 145. Just to explain the difference between the two: Supplementary Order Paper 145 adds in clause 30 new section 57C, “Persons or organisations must respond to coroner’s recommendations”. It is very explicit that it must be a written response, it must describe the actions that they are going to take or plan to take, but does not oblige them to take any actions, and it must then present that response within 60 days—a reasonable amount of time—to the Chief Coroner, and then that response is able to be made publicly available, with a summary of responses reported back every 12 months. It is a very transparent way of collating what happens as a result of a coroner’s report.

The difference between SOP 145 and SOP 146 is simple: my assumption was that not everyone would necessarily want to require all organisations to respond, because that could include private entities—although I would argue that they do need to be included, particularly when we look at, for instance, the hot-air balloon company that was the subject of a coronial inquiry. It makes sense that we include adventure tourism. We heard a lot about agricultural aviation and the accidents that occur there, and it makes sense for private entities to be subject to this requirement. But in case people are not comfortable with that, SOP 146 is a backup, as it were. It narrows the scope of the SOP and requires only Government agencies to respond to coroners’ recommendations.

But I want to leave the final word to the coroners themselves as to why a mandatory response—not mandatory implementation, but a mandatory response—is so necessary. Judge Neil MacLean, ex - Chief Coroner, stated in an interview 4 years ago that “one step that I have cautiously pushed is to follow what the Brits do, what some of the Australian jurisdictions now do, and actually make it mandatory, compulsory, to respond to a coroner’s recommendation. … at the moment, our recommendations sort of can easily, so to speak, die in the ditch, because they go out there, they sit there, they’re never actioned.”

The report then went on to talk about the fact that recently before that interview a 12-year-old had died after inhaling butane with a group of friends in a Christchurch car-park, and despite the coroners dealing with 28 butane deaths from 2007 to 2001, resulting in numerous recommendations, it was their assessment that nothing had happened as a result. Again, another example, Rotorua coroner Wallace Bain had also reported that a Taupō jet ski accident that resulted in the death of a young person was then followed by another death just a short time later, and that that person would be alive today if his recommendations had been implemented.

I would like to hear the Minister’s response to those SOPs. I believe strongly that the research by Otago University justifies them, as does the Chief Coroner’s view.

I am specifically going to speak to my colleague the Hon Phil Goff’s proposed amendment and take a bit of a different spin on it, because currently the coroner has the ability to inquire into deaths of armed service personnel on active service, unless authorised by the Attorney-General. What the legislation will do is basically flip that on its head and say that coroners cannot do an investigation into deaths of armed services personnel, unless the Attorney-General asks them to. The implications from the families’ perspective are really what I want to focus on.

The Hon Phil Goff has talked about a specific example, and that is of Corporal Luke Tamatea, who was killed in Afghanistan in 2012 when his Humvee was destroyed by a roadside bomb. In that particular case not only did the coroner undertake an investigation or an inquiry but the military also undertook an investigation. The interesting commentary from the family was that the coroner’s report into the death of Corporal Luke Tamatea helped not only his partner, medic Sarah Erb, but also his mother to get the answers that they were looking for, which enabled that family to get closure. I want us to focus on that—it enabled the family to get closure.

In respect of the military inquiry that was held in terms of Corporal Luke Tamatea’s death, the family got no information. So that is incredibly significant. The coroner undertook an investigation—completely independent and transparent, and in the public good—and not only did the family receive the findings of that inquiry and investigation but also we all did, because the aim and intention of these inquiries is that we can understand what happened, we hear from people who were involved in that particular incident, and it is the learnings from that coronial inquiry or investigation that then give effect to the recommendations that my colleague Jacinda Ardern was talking about, so that we can ensure that these deaths, if they are preventable, never happen again.

In terms of a military investigation or a military inquiry, I think that we would all assume that the families would have access to the report findings. What has been really interesting to research is that the court of inquiry for military deaths is actually empowered by the Armed Forces Discipline Act of 1971, and so a court of inquiry must occur when a service person dies in the course of their duties. However, when I searched through the Act, and specifically section 200, for that guarantee that families are entitled to the report findings, guess what? It does not exist.

This is probably why in the instance that I just talked about, the death of Corporal Luke Tamatea, his family and his partner were not privy to the military findings, because nowhere in that legislation are families guaranteed to receive that information. So I guess my question to the Minister responsible for this piece of legislation is whether we are going to now guarantee that families receive the military findings from investigations and inquiries. We are taking away an ability at the moment for the coroner to do an independent investigation, which, in the interests of the public good, is actually shared with us all, including the families.

The most interesting other point to note at this point in time is, however, that on a case by case basis the records of the military’s investigation can be released to the public based on high public interest, and to also note that a relevant factor is the wishes of family representatives and the people who are also involved in the inquiry. So it is interesting that we say that we will ask the families whether or not they agree on a case by case basis, but then we do not guarantee that they have access to the report findings. So I want to know from the Minister in the chair whether or not we are going to ensure that families of people in our military will automatically get any finding that only the military will now conduct, because they have had the safeguard in the past of the coroner and the coroner’s office being able to undertake an investigation that guaranteed to them that they would be able to get closure because they had access to the information of that coronial investigation.

That is really, I think, at the heart of my colleague the Hon Phil Goff’s proposed amendment, because if we cannot guarantee that the families of our military personnel—who actually are the victims when their loved ones are killed fighting for our country. If we cannot guarantee to the families when their loved ones do die, and a military investigation is conducted—if they do not automatically have access to those findings, then I actually think that there are going to be a lot of questions asked about how families can then understand what happened to their loved ones, and, in this case of Corporal Luke Tamatea, how they are going to get closure.

If this piece of legislation is going to create this big, huge black hole for families, I seriously think that we need to put on the record that it is the expectation of this Committee and this Parliament that families will have automatic access to military investigations. If we cannot do that, then I think an amendment needs to be tabled immediately by the Minister of Justice to address this issue. I am currently on the Justice and Electoral Committee. I was not on the select committee during the course of the submission process for this piece of legislation but, having looked at my colleague Phil Goff’s amendment, and then, from my perspective, looking at the true intent of this, I think that if we have left a big black hole that our families are going to fall into, we need to do something about it. Thank you.

I have already commented in the previous session of the Committee on some of the Supplementary Order Papers that have been submitted, but I do want to comment specifically in this speech on Phil Goff’s amendment regarding deaths in hostile action. The reasons I want to comment are that I can see that in the current law there is coronial jurisdiction for deaths of defence personnel regardless of circumstances, in addition to the court of inquiry process, and that process also has a safeguard in that it is itself subject to an external legal review panel conducted by a Queen’s Counsel. Under this bill, that coronial jurisdiction will continue when the death does not happen during hostile action.

The Justice and Electoral Committee’s changes to section 59 of the Coroners Act, specifically the addition of new section 59A(2) and (3), inserted by clause 32, will operate to protect the national interest by preventing an inquiry when the coroner determines the death was caused exclusively by the hostilities during hostile action and not otherwise. But the section—and this is the issue—also allows coronial inquiry into deaths during hostile action as well if the Attorney-General directs that should happen. Phil Goff’s amendment simply reverses that and says that, instead, the section will always allow such an inquiry unless the Attorney-General acts to prevent it. So it is really just as simple as that.

On the face of it, that does not seem like a big deal, but I actually think it is quite important, and some other speakers have mentioned the reasons why. However, I want to point out that whichever of those two options—what is in the bill, or Phil Goff’s amendment—will be adopted, new section 59A(4A) sets out the manner in which the Attorney-General will consider whether to act or not.

I want to read that out, because I think it is quite important. In new section 59A(4A) it says: “(a) whether the investigation or inquiry is likely to identify the cause and circumstances of the death; and (b) whether the investigation or inquiry could reveal information that may prejudice the security or defence of New Zealand; and (c) whether the investigation or inquiry is likely to examine military tactics; and (d) whether a court of inquiry has been, or will be, assembled under section 200A of the Armed Forces Discipline Act 1971 for the purposes of collecting and recording evidence about the relevant death.”

So there you can see, in a nutshell, what the primary considerations are. As others have said, there does need to be a balance here between, on the one hand, protecting the rights of families to understand what happened—and the public, of course, as well—and, on the other hand, these specified circumstances that really are extremely important for New Zealand’s national interest, and they must be balanced as well. In deciding which way to go—with what is in the bill or with Mr Goff’s amendment—I think there are three reasons why Mr Goff’s amendment should be supported, and New Zealand First will vote for it.

I would ask the Minister in the chair, Nick Smith, whether he would consider voting for it as well and making that change for, perhaps, these reasons and maybe some others. I am sure we all want a good bill. I am sure this is not a political contest. We just want something that will work, something that will achieve the balance I have spoken of, and, most particularly, something that will operate so that the public generally and, most particularly, the families concerned will be able to see three things.

Those three things are: (1) that there has been no political interference and no strange happenings behind closed doors that give rise to suspicion; (2) that the process itself is properly transparent and those matters I have referred to are properly considered in an open way, and that people can get information about that to satisfy themselves of that; and (3) that it does place the emphasis in the right place. I think, actually, this is the most important reason for me. I think it is the most important reason because it is a matter of emphasis, and the emphasis should be, I believe, in favour of transparency—showing the public and showing the families concerned that there has been proper process, that there is nothing to hide, and that the only reason why, if it does apply that there should be no coronial inquiry, is one of those four reasons I read out regarding the national interest, and for no other reason whatsoever.

So I think that those are three very powerful reasons that mitigate in favour of the approach taken by Phil Goff in his amendment and why I believe the Government should consider this again. I would ask the Minister of Justice to do so. If she feels that it is not possible for the Government to do so, I would ask the Minister in the chair to comment on why it should not, bearing in mind those three reasons I gave. If that happens, I would be willing to listen to that, but, as it is at present, I believe Phil Goff’s amendment should be supported.

I want to just make some brief comments in regard to clause 41 of the bill, which replaces section 80. The theme of this particular clause of the bill is around the decision of whether or not to conduct an inquest into deaths in custody. The current situation, of course, is that it is mandatory. I am speaking specifically about deaths in prison, but there are other forms of custody and care, obviously.

The default position at the moment is that a coroner must undertake an inquest when there is a death in one of our prisons. When the original drafting of the bill came to us and we saw that there would now be a discretion allowed, that was a deal-breaker for the Greens. That was entirely unsatisfactory for us for two reasons, the primary one being the wording in the original bill that said that there would be some discretion and the coroner would have to consider the following, that: “the dead person was, at the time of death, a person in official custody … and the negligence or misconduct of a person other than the dead person appears to have contributed to the dead person’s death.” In effect, that said to us that you had to be proven guilty before there would be an investigation. It suggested, almost, that a coroner would have to be satisfied there was something unwholesome in the death, something of concern, before they could conduct an inquest. That seemed an entirely roundabout way of approaching things.

I guess my other general point is that, sadly, in my view, the Department of Corrections is not an organisation renowned for its transparency. I believe it has a culture that is very inward-looking and very defensive. We have seen several inquiries in various forms into deaths in custody where it has been demonstrated beyond doubt that those deaths were preventable and they were a result of lack of adequate monitoring or lack of appropriate and timely health care, and so, for all of those reasons, we were completely opposed to the idea of discretion.

Our position has changed now because, in large part, of the submissions we got from the coroners themselves. The Chief Coroner came to the Justice and Electoral Committee, and one of the points she made was that due to some very misguided—I call it—changes to sentencing and other laws, we do now have this phenomenon of many more people growing old in prisons. The general health status of inmates in our prisons—generally, their health is probably like that of a person 10, 20, 30 years older than their chronological age. As people age in prison they are susceptible to illness and disease, and the coroner specifically noted examples where a person might be diagnosed with a cancer, they might spend their last year in prison suffering from that terminal condition, and yet, at the point of their death, the coroner was obliged to conduct an inquest. I heard similar submissions, just informally, from meetings with several other coroners, and they were all unanimous in their belief that they ought to have a degree of discretion in these cases.

We have got to the point of being satisfied with that, given that the new wording now speaks to the fact that the test, if you like, for coroners is that the death was a death in custody and the death would not reasonably have been expected by a doctor who had access to the person’s health information as defined, etc. That seems to us to be a much more straightforward, much more sensible solution, where there is a degree of discretion for coroners. Where there is an otherwise apparently fit, healthy person who has died unexpectedly, and if a medical practitioner looking at that person’s notes would not have expected that death, then that is a reasonable base level, we think, for triggering a coroner’s inquest. On that basis, I think that has come to a good place.

In fact, I have got a great deal of confidence, I would have to say, in the coroners. I think they are appropriately sceptical in these matters—they will conduct a fairly rigorous investigation initially, and if they are not entirely satisfied that the death was explainable by, for example, a pre-existing health condition, then they will trigger that inquest. We think that is a better place to be. Inquests are expensive, they demand a great deal—not least of all from any family that an inmate or a person in custody might have—and they can cause significant delays and upset, so I think that has probably come to a good place. As I say, I must stress that that was based on a number of both formal and informal conversations with coroners who were unanimous in believing that we ought not to have that mandatory provision. For that reason, the Greens are now supporting this bill.

I just want to make a brief call on the proposed amendments in the name of Phil Goff, and thank him for the thoughtful contribution that he made to the Justice and Electoral Committee.

Mr Goff’s amendments would allow coroners to investigate military deaths in action unless the Attorney-General directs the coroner not to investigate, which is contrary to what is proposed in the bill. In response, I would say that this issue—which always involves a grieving family of a Defence Force member or civilian in hostile action—was debated extensively by the select committee, and it was decided to retain the option in the bill as it was drafted. Inquiries into military deaths will potentially expose sensitive information relating to tactics and relating to matters of national security, and we should not underestimate the importance of not making that kind of intelligence available because the lives of others may depend on it.

It is appropriate to have the Attorney-General direct the coroner to investigate, to protect national security and, potentially, top secret tactical information. One of the members who spoke previously did go through the relevant provisions in the Coroners Amendment Bill, and I do not propose to go through those again, but they are new section 59A(4A)(a), (b), (c), and (d) in clause 32. If the Attorney-General does direct a coroner to carry out an investigation or to resume an inquiry, the coroner might open or resume that inquiry, but the only purpose of that inquiry is to, as far as possible, relay the particulars specified in section 4(2)(a) of the Coroners Act. These proposed considerations would assist the Attorney-General in considering whether coronial investigation might be helpful or might be redundant, or, indeed, might pertain to issues that are non-judicable.

I would say that this option, as proposed in the bill, is to also avoid duplication of investigations of defence combat deaths, given that they are normally investigated by the Defence Force’s court of inquiry process. I know that the court of inquiry process is a process that is disputed and perhaps undervalued by the Opposition, but we were assured in the committee that that court of inquiry process is truly independent, and so that is the view of the select committee.

I also want to make a brief comment around Supplementary Order Paper 146 in the name of Jacinda Ardern. Again, there was a lot of discussion around the potential merit of requiring a mandatory response to coroners’ recommendations, including by the Chief Coroner. However, we felt and came to the conclusion that rather than require a mandatory response, it is more beneficial to better focus on the coroners’ recommendations and involve those relevant individuals—so, instead of waiting for a recommendation and then having a mandatory requirement for a response, to involve at an earlier point in the investigation those relevant individuals and organisations—to ensure that the coroners’ recommendations, when they are made, are indeed useful. Thank you.

I want to make some brief comments to underline the argument that my colleague Jacinda Ardern has been making, particularly in relation to new sections 57A and 57B, and also the Supplementary Order Papers (SOPs) 145 and 146 in Jacinda Ardern’s name. What I want to do is just extrapolate a little bit on the argument that she presented around the coroner’s investigation and reporting on the matter of death as a result of accident or crime and the recommendations that are then made by the coroners.

The example that Jacinda Ardern uses, and that is also part of the Labour Party minority view, is the case where a road death has occurred and where there is an issue—for example, of the misuse of alcohol—that is a major contributor to that death. However, as part of the investigation, the coroner discovers that there are other contributing factors that may or may not be as weighted in the result of the death but are significant and are contributory—they may, for example, be road conditions. So in the case of a death that has occurred as the result of the misuse of alcohol, where there have been other contributing factors, the coroner is unable to actually include in his or her report these other factors that may or may not be significant. However—and this is the point I want to underline—those elements may be significant in other accidents or other deaths, and the fact that they are unable to be reported as part of the investigation actually means that we are losing the opportunity to then ensure that other accidents and other deaths are potentially prevented.

I think it is significant, particularly when this year—and, I hear, over the last 3 years—the road toll is actually on the rise. Part of the concern for those in the road transport organisations would be things like road conditions, weather conditions, and the condition of motor vehicles, as well as the condition of the driver in charge of the vehicle at the time of the crash. This really speaks also to the Supplementary Order Papers in the name of Jacinda Ardern, which not only look at the ability of the coroner to make those recommendations but also require agencies and individuals to actually respond to those recommendations. The SOPs do not require that the individuals or organisations make recommendations for changes, but they do require that they make a response. This is really important, because then the coroner should be able to report on those findings, and those findings will be useful in being able to prevent other deaths in the future.

In that regard, I also want to talk to the submission that was made by the Mental Health Foundation of New Zealand with regard to the reporting of suicide. Where we are discussing being very open about making recommendations and requiring responses about other deaths, there is a particular sensitivity when we are reporting suicides. One of the pieces of evidence that the Mental Health Foundation gave was in the reporting of suicides—the sensitivity that is required and the level of detail that is then reported in order to prevent copycat suicides. However, when we look at best practice for organisations that support those who are having suicidal tendencies or thinking of self-harming, one of the recommendations that it makes is that we are sensitive to the actual mechanism of that death. We must continue to talk about suicide as a concern for our community but there are ways to do it that are sensitive, to ensure that we do not then perpetuate other copycat suicides. It is a very important element to consider when we are asking coroners to report findings on deaths where people have taken their own lives.

On that note, I just want to finish with the issue that was raised by my colleague about the wishes of whānau. My colleague Louisa Wall raised this in the context of investigations of Defence Force personnel who have died in combat, but the notion of the wishes of whānau needs to be underlined throughout this work. It has been noted that whānau wish to be consulted about releasing the details of the death of their loved ones, but it does not actually recommend to us the weighting of their decision making in the release of the evidence of the investigation that the coroner has made. It is interesting because whānau will have differing views. Some will be very open to the nature of their loved one’s death being advised to the general public and some will not. That might be due to the nature of the death or it might be due to the family’s sensitivity, but I would encourage the Minister to consider more fully the impact that whānau believe that they can have in relation to this and the wishes of the whānau in regard to the death of their loved ones. Thank you.

I move, That the question be now put.

I would like to talk specifically to the amendment to clause 41 in my name, which deletes clause 41. The point goes back to what David Clendon was saying about deaths in care or custody. I can understand the position of people who are saying that when you have somebody in custody who maybe has had cancer for a year or so, or has a history of ill health, and they pass away in custody, it is really not important to go to the extent of having an inquest; rather, an inquiry will do. I can sort of understand that, except that what my amendment does—what section 80 in the Coroners Act 2006 did was it took out all the discretion. It said that a coroner must decide to hold an inquest for the purposes of the inquiry if the death appears to have been a death in official custody or care.

The concern, really, is more around those people who are in State care, such as children under Child, Youth, and Family (CYF) care who may have taken their own lives. There was an example that was brought up in the select committee process, where the Justice and Electoral Committee was advised by an ex-coroner of a case involving a young person in CYF care who did commit suicide. The changes to the Act would lean towards an inquiry being held in this case, but the coroner in question actually conducted an inquest, which allowed, as a result of the hearings that took place, the coroner to identify a series of suicides in this whole community, and the local district health board (DHB) was alerted; then the DHB was able to put in place strategies around the cluster of suicides. So I think it is important, in particular for those who die in State care, that an inquest must be held, rather than just having the discretion that maybe an inquest might be held, and just having the inquiry. As we know, the inquiry is a paper-based look at the death, rather than actually holding hearings and looking into the full circumstances around the death.

That said, the deaths in custody—I understand where others are coming from, where other parties are coming from. I understand that this particular clause, clause 41, has support from various organisations, but I still think that deaths in custody do need to be looked at in depth and all the circumstances around those deaths in custody should be part of a full inquest, just to be on the safe side.

I know that we have a lot of respect for coroners and the work that they do. In fact, a relation of mine is the coroner up in the north there. So it is not to say that coroners will try to take shortcuts in this instance. It is really just making sure that the whole system, the whole circumstances around the death of a person in custody, is looked at. If you take the suicide that I mentioned before, about the young person in CYF care who committed suicide, the DHB being alerted would never have happened if an inquiry had been chosen over an inquest.

So we are also concerned by the loss of more critical examination of deaths in corrections facilities. We believe that there are a number of instances where people have passed away in corrections facilities where the circumstances around their deaths need to be looked at. This is just a short contribution to talk about my amendment, which proposes that clause 41 should be removed and that section 80 as it is in the Coroners Act 2006 should be kept as it is. Thank you.

I just want to follow on from my colleague Kelvin Davis, who was speaking to his amendment to clause 41, about deaths in custody, because this was a substantial debate at the Justice and Electoral Committee. I take on board the points that were made by David Clendon around the good work that was done to narrow that provision around the circumstances under which an inquest would not be held, but the reason that we still have concerns is threefold. The current clause, as it is written, is still heavily reliant on the medical records as they are written and made available to a doctor, and on the doctor then making a decision based on those medical records as to whether or not the death would have otherwise occurred naturally.

Medical records and the medical care of prisoners, if we are speaking specifically of prisoners, are under the jurisdiction of the Department of Corrections. They are corrections-controlled. There is no ability for external medical provision, really, unless someone is taken out of a facility. Our concern is that under the current regime, that could raise questions for family members around whether or not those medical documents are always the best way for a doctor to make an independent decision. We have argued for some time that district health boards should be in control of the provision of medical care in correctional facilities, rather than the Department of Corrections. That is one of our concerns.

We absolutely accept that in our current environment we are having people die of natural causes—we are—and that, actually, it would make sense to find a way to filter out some of those inquests and inquiries in custodial care. But our concern is that under the current medical regime within correctional facilities, with the amount of mismanagement that has gone on with the privatisation of those facilities, we do not believe that we have a regime that family members will necessarily believe there is enough transparency around. Perhaps if we changed the way that medical treatment is provided within our corrections facilities, then there would be a place for that clause and that clause would probably be on a much surer footing.

We also need to remember that this amendment does not relate only to correctional facilities. We are also talking about deaths in custody in mental health institutions and deaths of children in care. I want to ask a question to the Minister in the chair, the Hon Nick Smith, because there has been no contribution from the Minister so far in this debate, and we have raised substantial issues—substantial issues—that we have requested a response to. I would seek from the Minister a response around these provisions around holding inquests versus inquiries. When it talks about deaths in custody, does that relate to children under the care of the chief executive? In our minds, there should be an inquest on every occasion that there is a death of a child who is under the care of the chief executive of Child, Youth, and Family, because, actually, just saying “a child in residence” is a very narrow group.

There are 5,000 children in care at any given time, and do you know what? Under this clause, they could, presumably, be determined to have died of what could be considered a natural cause. It could even determine my question as to whether or not Sudden Unexplained Death in Infancy (SUDI) would fall under that example. If a child who was under the care of the chief executive died of SUDI, would that result only in an inquiry rather than in an inquest? I have read reports from the coroners where it is clear that the family will get much more closure from an open and transparent process. If it was their child in care, I absolutely could understand why they would want an inquest rather than an inquiry in those circumstances.

So I have two points. Is a child who is in foster care considered to be in custody, or is the care of the chief executive considered to be something that would always have an inquest? My second question is: if they die of SUDI, for instance, would we then have an example where a doctor would say: “No need for a full inquest.”? Actually, I think that would be wrong, and I think families would be deprived of the closure they need. Those are a couple of the reasons why we have this amendment. I understand the need for there to be greater efficiencies. We are just concerned that we have not got the checks and balances quite right.

I want to come to suicide reporting. That has not been spoken of during this debate. It is incredibly important. I actually had a member of the public contact me and raise the fact that in terms of suicide reporting, as it sets out in section 60, inserted by clause 33, inquiries must always be opened into a death where “(a) the death appears to have been self-inflicted;”. But what is the proportion of inquiries versus inquests for self-inflicted deaths?

The reason I ask that is I have had members of the public contact me and say that there are some circumstances where we would have done well to conduct a more robust inquiry into those self-inflicted deaths. A coroner, in fact, raised the fact that in his town, had he not conducted an inquest, he would never have been able to identify that there was actually a string of self-inflicted deaths in his community that had not been connected. Some conversation around where we are making those decisions and why, and whether we are serving those families and communities well by drawing that line, would be a useful discussion.

But the issue that came up frequently in the debate was around the reporting of self-inflicted deaths, because, of course, under the current legislation we have very tight criteria. Currently, no one may make public any particular relating to a death suspected to have been self-inflicted until the coroner has completed his or her inquiry into the death. So no one is able to report on a self-inflicted death or give any of the circumstances or even imply that it was self-inflicted. The select committee was very clear that, actually, under the current environment and the way that these situations are often reported, many, many people are often in breach of this requirement.

There are many, many circumstances where the media may be compliant, but everyone surrounding the media, particularly in an engaged social-media world, is then acting in an uncompliant way. That is causing a real discrepancy in what is happening in reality. We had a very robust debate at the select committee around these changes, and I think that, on balance, even though it could be argued either way, it probably got to a much better place than the current legislation, at least.

We now have a situation where, unless an exemption is granted, the requirement now is that if an incident is being made public, a person may make public that death as a suspected suicide until the coroner’s findings are released. There is able to be a discussion based on what is suspected to have happened, but there are still limitations, and those limitations are that the method and, for example, the place in which the death occurred, if it suggests the method, may not be publicly discussed.

The reason for that is that we tried to look at the available evidence around what may act as triggers for copycats, and the evidence seems to suggest that method plays an important part in those tragedies. Our responsibility is to try to act as responsibly as possible and find a balance between the reality of the conversations that happen in the public and what we should still try to restrict in an effort to try to ensure that we do not create flow-on effects from the reporting of suicides.

I want to acknowledge, though, the contribution people made to that difficult debate that we had. The select committee tried to give it the fullest consideration. We were very mindful that we did not want to, for instance, have members of the public inadvertently falling foul of the law because the law did not make sense, but at the same time we felt a responsibility to listen to that research and evidence base. That is the middle ground that has been reached: you can talk about suspected suicide, but we must then still wait for a coroner’s report, and there are restrictions on the detail that is able to be provided.

I think the select committee reached as good a place as it could, but I am mindful that we will probably see movement in this space again in the future, as there continues to be rapid development on reporting. But, more important, what must guide any future decisions will be the evidence and research presented to us. I do not want to be dictated to simply by what the media chooses to report, relative to what other members of the public are able to put in a blog. I would rather be dictated to by what the evidence tells us is the safest way to report and with regard to the wider community and those families who are involved in those tragic situations.

I move, That the question be now put.

I am not going to accept the closure motion. I just want to make it clear to the Committee that to date the debate has been relevant and not repetitious. The legislation is not trivial legislation. It is substantive, and there are some important amendments to it that are before the Committee, including one from the Minister. I just want to repeat a previous ruling that I have made, and that is that when proper questions are asked of a Minister and they are not addressed or not answered by the Minister, that will tend to extend the debate. I think we are in that situation now.

Can I just start by thanking Jacqui Dean for her comments and for the hearing that I got at the Justice and Electoral Committee on the change that I am now bringing to the Committee by way of my amendment. She said that she thought the contribution was a thoughtful one, and I think that all members on that committee did give it proper consideration and there was support for at least acknowledgment of the arguments from all sides of the House.

As you know, the decisions that are made about bills are not made at the select committee but often they are made by the Minister, and I am urging Minister Smith, quite genuinely, to answer the questions that I have raised. The amendment that I am bringing forward is an amendment that I am bringing forward on behalf of the family members of those who were killed in service of their country. They have expressed genuine concern, heartfelt concern, about what this means for the information they might get about the circumstances in which their loved ones were killed. It is not a frivolous contribution that I am making. I thank the New Zealand First Party—Denis O’Rourke—and the Greens for their support, and the Labour Party, of course, but I do not see this as a partisan amendment. I see this as an amendment that is actually based on addressing the concern that the Defence Force raised, but in a way that best satisfies the requirements of transparency and accountability.

Minister, if I can take your attention just to look at what the regulatory impact statement from the department behind this bill actually said about the option that I am promoting. The question—it goes through all the options and it asks whether these options balance transparency with the risk of inquiring into matters of State. The answer that the department itself says about what I am recommending is: “Yes. Achieves a balance—it ensures that coroners investigate the deaths of members of the [Defence Force] except where the Attorney General considers there are risks to national security.” So it cannot be that concern about national security prevents the Government from supporting my particular amendment. Again, the department says that “A coronial investigation will provide independent scrutiny of the circumstances in which the death occurred, which is accessible to the public.” I am asking you, Minister, why we should not have independent scrutiny in a way that is accessible to the public but, most particularly, to the families who have suffered the loss that they have.

For the next question from the regulatory impact statement “Does the option duplicate investigations?”, the answer is “No”. In fact, the coroner has always relied on the New Zealand Defence Force to provide some of the factual material about what happened in the circumstances of the death. It asks whether it is consistent with other legislation—yes, Minister, my amendment is. It is consistent with the Visiting Forces Act 2004. In its conclusion, it sums up by saying, yes, this option does give us “Adequate opportunity for an independent inquiry.”, it “Does not contravene national security.”, it “Provides transparency …”, and it says, as an adjunct, that coronial resources would, of course, be stretched if there was a major war, but that is not what we are talking about here. We are talking about the 21st century, where the circumstances of death are pretty much the same as those that occurred with the loss of 10 New Zealand lives in the Afghanistan conflict.

So I am asking you, Minister; this is the one place where you can be accountable to the House. This is the one place where I and other members of Parliament can get an explanation from you as to why you would not support this amendment, for which the bereaved families have shown real support, and about which the former Chief Coroner has said is more democratic and is more consistent with the countries that we would always compare ourselves with in this field: Australia, the United Kingdom, and Canada. It is consistent with what they have done. What we are talking about is a coronial investigation that is the status quo. That right is there for the coroner to look into the deaths, and there has been no evidence that coroners have done other than work cooperatively with the New Zealand Defence Force.

It is not too late for the Government to change its mind. I am not trying to embarrass the Government; I am simply saying this is the option that makes sense, and this is the option that those families want.

I am happy to respond to the points that have been made by a couple of members in the Committee stage. In respect of the issue of military deaths, these issues were well canvassed at the Justice and Electoral Committee, as my colleague Jacqui Dean noted, and the concern that has been expressed by members of the Opposition is whether a coronial inquiry is a more appropriate mechanism for investigating a death where a person serving in the New Zealand armed forces is killed overseas. I think the really important point in making a judgment about whether the investigation will be independent or not is the fact that the New Zealand coronial inquiry is going to be totally dependent on the information that is provided by the Defence Force. The idea that somehow if the Defence Force—and I am not ill-disposed; my view is that our senior Defence Force personnel grieve at least as much as, if not more than, we parliamentarians when we lose a member of our armed forces, so I do not buy into the rhetoric that somehow there will be some cover-up. But even if you do accept that rhetoric, my point would be that if the Defence Force is going to control all the circumstantial evidence about what occurred in a foreign country such as Afghanistan, then a coronial inquiry is no protection against it.

Equally, if we look at the experience of the United Kingdom, it is absolutely clear from the experience of coronial inquiries that you then have in a public forum that defence forces having to disclose what their tactics are and what the capability of their equipment is in a public forum, is actually contrary to the interests of protecting the people who serve in the armed forces. Actually telling others in other countries what we are able to do and how we operate to try to win conflicts is not in the interests of the safety of our brave men and women who serve in our armed forces. The final point I would make in that regard is that this bill proposes that if there are exceptional circumstances, then the Attorney-General is able to have a coronial inquiry.

In respect of the issues that were raised by the Green Party about the issues of deaths in custody of the Department of Corrections, what we have now in the law is a blanket requirement for there to be a coronial inquiry into all cases of deaths that occur within our prisons. Actually, there are circumstances in which prisoners die entirely as a consequence of natural causes. To put the system to the automatic expense of going to a full coronial inquiry is so typical from the Greens, who never face the reality that there are limited resources and that we want the resources of the coroner focused on those cases where there are the most lessons to be learnt in order for us to ensure matters of public safety.

In respect of the last issue—whether we have got the balance right in the reporting of suicide—this bill makes a modest allowance for social media and for more open reporting of suicides; although it still sticks with the clear, scientific evidence that if suicides are reported inappropriately there is actually a risk that we, in fact, increase the risks to the wider community.

So, in my view, the provisions of this part, as have been appropriately dealt with by the select committee and with the amendments in the Supplementary Order Paper, provide the right advances for the improvements in our coroners’ laws in a way that maximises the safety of the public while still ensuring that our coronial system provides the reports where they are needed so that we can learn and prevent deaths in future.

I would like to focus on clause 52, which inserts new section 116A, “Establishment and constitution of suicide and media expert panel”. I would like to do that within the context of the make-up of that particular panel. I did want to ask the Minister in the chair, Nikki Kaye, specifically about the skill set of this particular panel, because this panel is being constituted to provide advice to the Chief Coroner about applications for exemptions from the restrictions that apply to the publications of suicide in New Zealand. The members of this committee are going to be experts in suicide prevention, with expertise in the media, expertise in tikanga Māori, and expertise in Māori youth suicide. I want to commend the establishment of this particular expert panel, but I do want to ask the question about whether expertise in terms of LGBTI issues is also valid expertise for this particular expert panel.

For just a little bit of history so that people know where the establishment of this expert panel came from, I would like to acknowledge the previous Minister for Courts, the Hon Chester Borrows, because it was through him that Law Commission report No. 131 was actually constructed. That was about suicide reporting.

This phenomenon of suicide in our country is an issue that we all should be incredibly committed to addressing, because if we look at the suicide statistics, this 2014-15 reporting year we had 564 deaths by suicide. The previous year we had 529 deaths by suicide. In 2013-14 we had 541 deaths by suicide. I think that if we look at our history of the phenomenon of suicide, the issue that this particular establishment has highlighted means that it is incumbent upon us and, obviously, the coroner’s office to do as much as we can to prevent the phenomenon of suicide in our country.

We have created this expert panel because there has been debate about whether or not the media reporting of suicide actually exploits a vulnerability in certain members of our community so that they go on and emulate the suicide of somebody else. This copycat phenomenon has really limited our ability, sometimes, I believe, to talk about some of the suicides that happen in Aotearoa New Zealand. The establishment of this particular expert panel is going to enable us to have conversations—and those conversations, I want to highlight, from parents, for example, who have lost loved ones and who, in retrospect, when they look at the behaviour of their children, see signs that they did not pick up on. There is an ability, I believe, to come to a position where we can try to prevent future suicides and ensure that our young people are receiving the help that they need. If this expert panel is going to contribute to that, then that is a fantastic achievement of this piece of legislation.

I would like the Minister to make a contribution about whether other expertise was sought, or whether they think that within the areas that I have mentioned LGBTI issues will be talked about, because whether we like it or not, the statistics are really clear from youth surveys that if you are an LGBTI young person in New Zealand, your rates of suicide attempts are two and three times higher. For our trans kids, I think that they struggle not only with their identity but with the fact that they do not have people to talk to about what they are going through. Actually, we have an incredibly unresponsive health system. I know of young trans people who, if they are lucky enough to access hormones, will not be eligible to have the surgical reassignment surgery that they need, for 32 years. How is that going to impact on a young trans person who is diagnosed today and has to wait 32 years to receive gender reassignment surgery? Thank you.

I move, That the question be now put.

Yes, I think we are in a position—no one else took the call? OK, in that case I will just ignore it and we will go straight to the questions. Is that all right?

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 174 in the name of the Hon Amy Adams to Part 2, and the following amendments in her name to clause 56B be agreed to:

in the heading to clause 56B replace “on and after 1 July 2016” with “after commencement of Coroners Amendment Act 2014”.

in clause 56B, heading to new section 143A, replace “on and after 1 July 2016” with “after commencement of Coroners Amendment Act 2014”.

in clause 56B, new section 143A, delete “on and” and delete “on 1 July 2016”.

Amendments agreed to.

The question was put that the amendment set out on Supplementary Order Paper 145 in the name of Jacinda Ardern to Part 2 be agreed to.