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Coroners Amendment Bill (Consistent) (Sections 21, 25(a)) [2014] NZBORARp 23 (29 July 2014)

Last Updated: 24 March 2019

Coroners Amendment Bill

29 July 2014 Attorney-General

Coroners Amendment Bill (PCO 17822/9.0): Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/217


  1. We have considered this Bill for consistency with the New Zealand Bill of Rights Act 1990 (NZBORA).
  2. We conclude the Bill, which amends the Coroners Act 2006 (the Act), appears to be consistent with NZBORA.

Background


  1. The Ministry of Justice advise the Bill is intended to be submitted to LEG on 30 July.
  2. Changes in the Bill include requiring a coroner’s recommendations or comments to be specific to the case and the evidence before the coroner, and to be clear about how such recommendations will reduce the likelihood of future deaths in similar circumstances. The Bill strengthens the requirement for the coroner to consider which individuals or organisations have an interest in the death and to ensure those individuals or organisations have the opportunity to give evidence or consider any recommendations that may be directed to them before the coroner finalises his or her decisions. The Bill also clarifies the role of pathologists and processes for retaining or returning human tissue samples, and contains new provisions relating to the rights of people whose conduct may be called into question in an inquiry by requiring the coroner to notify them of their right to be represented, and to cross-examine witnesses, at an inquest.
  3. The Bill will remove the requirement for a mandatory inquest into deaths in official custody or care, and clarifies a person may report a death that occurred overseas if the body is in New Zealand and the person has concerns about how overseas authorities responded to the death, but that there is no requirement to do so.
  4. The Bill provides for the Attorney-General to determine whether a coronial inquiry is required for the deaths of New Zealand Defence Force members on operational service that are directly caused by hostile action and limits the scope of the coronial inquiry to

establishing the person’s identity and the causes and circumstances of the death.


  1. The Bill also amends the restrictions on reporting suicide deaths set out in sections 71 to 73 of the Act.

The Bill: particular issues

Requirement to report deaths to the New Zealand police: cl 9 (Bill p 8)


  1. Clause 9 amends s 13 of the Act and requires reporting of deaths. It therefore amounts to forced expression. However, such limitation upon freedom of expression is clearly justifiable having regard to the purposes of the Act.

Power of Coroner to require person’s medical practitioner to provide report and medical records: cl 22 (Bill p 16)


  1. Clause 22 of the Bill provides for a new s 40:

“40 Coroner may require person’s doctor to provide report or health information

Despite anything in the Privacy Act 1993 (or any code issued under that Act), a coroner may, by written notice to a doctor who attended a person before the person’s death, require the doctor to give the coroner either or both of the following:

“(a) the person’s health information (as defined in section 22B of the Health Act 1956):

“(b) a written report (containing information specified in the notice) relating to the person.”


  1. This clause amends s 22 of the Act so a coroner may require the deceased’s medical practitioner to provide medical records of the deceased as well as a written report on the death in question. The new provision specifically prevails over the Privacy Act 1993.
  2. The clause raises issues relating to unreasonable search and seizure (s 21 NZBORA). Having regard to the purposes of the Act (to help to prevent deaths and provide for independent investigation of deaths) and s 78 of the Act, which confers the same immunities and privileges as witnesses in courts of law on witnesses giving evidence (whether at inquests or otherwise) for the purposes of inquiries under the Act, we conclude the rights protected by s 21 of NZBORA are not infringed.

Restriction on making public details of self-inflicted deaths: clauses 38 – 39 (Bill pp 22 - 25)


  1. Clauses 38 and 39 amend ss 71 and 75 of the Coroners Act which impose restrictions upon the publication of matters relating to self-inflicted deaths or cases in which there is reasonable cause to believe a death is self-inflicted. New s 71 states that unless the chief coroner agrees, no one may make public any information about the manner in which a death occurred in such cases unless an exemption is granted under new s 71A. Otherwise the only particulars that can be made public is the fact the death is a suspected suicide, and, if the coroner has completed a death certificate of findings stating the death was a suicide, a statement the death was a suicide. Under the new s 75 an affected person may apply to the High Court for a review of the chief coroner’s decision not to grant an exemption from a restriction applying to the publication of details of self-inflicted deaths.
  1. The Chief Coroner may grant an exemption under s 71A only if satisfied granting the exemption does not present an undue risk other people will attempt to copy the behaviour of the dead person concerned; and any risk that people will attempt to copy the behaviour of the dead person concerned is outweighed by other considerations making it desirable, in the public interest, to allow the publication of the details in question.
  2. When making a decision on an application for an exemption, the Chief Coroner may seek advice from a suicide and media expert panel of up to four members with expertise in at least one of the following areas: suicide prevention; media; tikanga Māori; Māori youth suicide.
  3. Restriction on the reporting of a method of suicide are justifiable given one of the purposes of the Act is to help to prevent deaths. In addition, the Chief Coroner is able to grant an exemption from restricting publication of these details, and the Chief Coroner’s decision will be subject to High Court review. There is also a justifiable interest in protecting the privacy of persons connected with the deceased. Accordingly, we conclude the limited restraints on publication, as set out in the Bill, represent a justifiable limit upon freedom of expression.

Reappointment of coroners/relief coroners after they turn 70; cls 47- 48, (Bill p 29)


  1. Clauses 47 and 48 of the Bill would permit the reappointment of a former coroner of or over the age of 70 years for one term that does not exceed two years, and the appointment of a former coroner or former relief coroner of or over the age of 70 years as a relief coroner for one term that does not exceed two years.
  2. The proposed amendments raise two potential NZBORA issues. First, does the proposal for a time limited term raise NZBORA issues? Secondly does the age related restriction on an additional term raise any such issues?
  3. On the first issue assistance may be derived from case law on the appointment of acting Judges. The constitutionality of the office of an acting judge under the current law was considered by the Court of Appeal in R v Te Kahu 1 and the High Court in Wikio v Attorney- General. 2
  4. The Court of Appeal expressly declined to make a finding as to whether the appointment provision for acting judges in s 11A of the Judicature Act was consistent with fair trial rights under s 25(a) NZBORA. The Court accepted there was a prima facie argument that such appointment undermined the s 25(a) right, but nonetheless affirmed that New Zealand Judges could reasonably be relied upon to resist any subconscious influences posed by the nature of reappointment; 3 and affirmed there were “a number of” policy justifications which remained to justify the existence of acting judges, such as reducing workflow.
  5. The issue was revisited in greater depth in Wikio. In that case the High Court concluded the power to appoint and reappoint acting judges did not offend against s 25(a) NZBORA.
  6. Having regard to case law both in New Zealand and overseas 4 we conclude the power to appoint coroners and relief coroners to one further term of up to two years does not

offend against s 25(a) NZBORA.

Coroners/relief coroners retirement age: cls 47-48 (Bill p 29)


  1. Presently coroners and relief coroners must vacate office at 70 (ss 103, 104 Coroners Act). As noted above, clauses 47 and 48 of the Bill provide coroners and relief coroners of or over the age of 70 may be reappointed for one term that does not exceed two years.
  2. The existence of a mandatory retirement age (regardless of the age at which it was fixed) is prima facie discrimination on the basis of age, contrary to s 19 NZBORA.
  3. Setting a mandatory limit here, however, also has an important purpose: namely the preservation of coronial independence. The importance of this purpose is affirmed by s 25(a) NZBORA, which protects the right to trial by an independent and impartial court, and s 27 rights to natural justice.
  4. A mandatory retirement age may be rationally connected to achieving those purposes, as it forms part of a wider range of statutory controls on coronial service (such as fixed income and protection against removal from office) which, taken together, instil security of tenure.
  5. The limit of 70 years reflects a proportionate response to achieving those purposes. Such a limit has been adopted in respect of judges in the United Kingdom, Australia, and Ireland. The United Nations General Assembly has also affirmed the reasonableness of mandatory judicial retirement ages generally in GA Res 40/32, 29 November 1985 and GA Res 40/146, 13 December 1985: Basic Principles on the Independence of the Judiciary. Case law and principles relating to judges are relevant in the present context (e.g. under the

Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 the term “judge”

includes coroners).


  1. Alternatives, (such as having no mandatory limit) would potentially provide greater security of tenure, but have disadvantages (such as potential diminution of coroners’ health). Similarly having coronial appointments limited by term, while potentially avoiding prima facie age discrimination, would create risks for coronial independence.
  2. We conclude the restriction on one further term of up to two years once a coroner or relief coroner attains 70 years is an incursion on s 19 NZBORA rights, but a proportionate one to achieve an important objective.

Conclusion


  1. We conclude the Bill appears to be consistent with the New Zealand Bill of Rights Act.

Footnotes


  1. R v Te Kahu [2005] NZCA 438; [2006] 1 NZLR 459 (CA).
  2. Wikio v Attorney-General [2008] NZHC 1104; (2008) 8 HRNZ 544 (HC).

3 At [41].

4 Kearney v Her Majesty’s Advocate (2006) SC (PC) 1, Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 229 ALR 223.

Peter Gunn

Crown Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Coroners Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.


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