: Coronial law reform: Watch this space

Coronial law reform: Watch this space

Tatum Hands
Western Australia

The Law Reform Commission of Western Australia (‘the Commission’) has recently released its review of Western Australia’s coronial system and has made a total of 113 recommendations for comprehensive reform of legislation, policy and practice. Recommendations have been influenced by successful practices in other jurisdictions while being tailored to the unique demographic and geographic needs of this sizeable state. A significant (though perhaps unsurprising) finding of the review was that regional Western Australians did not have equality of access to coronial services. This was reflected in the uneven quality of regional coronial investigations, inadequate training of regional magistrates acting as coroners and failure to provide the counselling service required by legislation. The Commission recommends a completely specialised jurisdiction with a State Coroner and Deputy based in Perth with dedicated regional coroners servicing the north and south of the state. A major structural reform recommended by the Commission is the repositioning of the Coroners Court under the umbrella of the District Court to bring it more overtly within the judicial hierarchy of the state and to provide a clear line of accountability to a chief judicial officer.

WA was the first Australian jurisdiction to legislatively embrace the role of the coroner in the prevention of future deaths and this has now become an important focus of the work of modern coroners. The Commission recommends that this role be strengthened by making death prevention a primary object of the Coroners Act and by establishing a team within the Office of the State Coroner to conduct research to support and inform the coroner’s decision-making and recommendatory functions and to assist in focussing public resources into meaningful and targeted death prevention strategies. It also recommends that Western Australia establish a legislative scheme (similar to that in Victoria) for mandatory response to coronial recommendations by public statutory bodies.

One way in which the coronial jurisdiction has moved on elsewhere is in the use of less-invasive post mortem examination techniques. Western Australia currently has a very high autopsy rate with up to 95 per cent of all cases being subject to a full internal post mortem examination; in most other Australian states the rate is between 70 and 75 per cent. Recommended changes to encourage the use of external or preliminary post mortem examinations will assist coroners to make decisions about whether a full internal post mortem examination is necessary for investigation of the death.

A particular problem with coronial investigations experienced in many jurisdictions is the investigation of deaths in healthcare settings. In WA, police investigations are heavily dependent upon statements from witnesses provided through legal counsel some significant time after the death rather than gathered through questioning by police immediately following a death. This can give the appearance of bias as well as significantly contributing to problems of delay. The Commission has recommended that a specialist healthcare death investigation team be established, to be comprised of the coroner’s medical advisers, a nursing professional and two coroner’s investigators, located within the Office of the State Coroner. The team would be tasked with investigations of hospital deaths and provision of advice to enable the timely assessment of cases that warrant further investigation at inquest. The team would also be tasked with liaison and education to enhance cooperation between the Coroners Court and the healthcare sector.

As WA has more immigration detention and processing facilities than any other Australian state, the Commission has recommended that Western Australia legislate, as far as is constitutionally possible, to ensure that deaths of persons in Commonwealth care of custody are adequately investigated. Under the Commission’s recommendations such deaths will be subject to mandatory inquest and the coroner will be required to comment on the treatment and care of persons who die in Commonwealth custody.

Other recommendations include that the Corruption and Crime Commission actively monitor and review investigations into police-related deaths and that provisions be enacted to enable information sharing between coroners and agencies undertaking specialist investigations into deaths that are also subject to coronial investigation.

The Department of the Attorney General is currently working on a comprehensive response to the Commission’s report.

TATUM HANDS is author of the Law Reform Commission’s Review of Coronial Practice in Western Australia.

(2012) 37(2) AltLJ 139
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