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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
- We
have considered this Bill for consistency with the New Zealand Bill of Rights
Act 1990 (NZBORA).
- We
conclude the Bill, which amends the Coroners Act 2006 (the Act), appears to be
consistent with NZBORA.
Background
- The
Ministry of Justice advise the Bill is intended to be submitted to LEG on 30
July.
- 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.
- 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.
- 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.
- 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)
- 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)
- 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.”
- 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.
- 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)
- 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.
- 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.
- 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.
- 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)
- 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.
- 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?
- 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
- 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.
- 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.
- 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)
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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
- We
conclude the Bill appears to be consistent with the New Zealand Bill of Rights
Act.
Footnotes
- R
v Te Kahu [2005] NZCA 438; [2006] 1 NZLR 459 (CA).
- 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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