The Alliance's Australian Coronial Reform Project has two main aims: reform of Australia’s coronial system, and establishment of a National Inquest Clearing House.
We need coronial reform across Australia so that all states and territories have independent and effective coronial systems that learn from past deaths in order to prevent future avoidable deaths. System responses must also effectively address social justice issues if they arise from particular deaths. Coronial reform should include consistent best practice support and sensitively facilitated participation of families in investigations, inquests and all other aspects of the required systemic response. We also need to establish a National Inquest Clearing House to facilitate effective coronial systems and enhance the participation of families.Part 1 of the report outline a case for national coronial reform-
The coronial system has a distinctive place in Australian legal practice. Coroners investigate certain types of deaths, such as those that are sudden, unexpected or violent. In some cases, the coroner also presides over an inquest, which is a court hearing that is usually public. Coroners are required to discover the truth about a death - generally, who the deceased was, how they died, and the circumstances of their death. This process means investigating not only the immediate but also the underlying causes of death. Coronial investigations and inquests are formally inquisitorial (truth-seeking) rather than adversarial (against someone), and are not bound by the rules of evidence and procedure in other courts. Instead, coroners take a broad public health approach, which means that in a best practice investigation the focus is on drawing any relevant systemic lessons from the death in order to try to prevent, or at least minimise the chances of, similar deaths occurring in the future. Systemic issues can arise from contexts as diverse as those involving faulty products, medically related deaths, industrial accidents, the treatment of persons in custody and care, or the way that governments respond to family violence. Coronial investigations therefore often also have social justice implications. Families seeking some comfort from investigations and inquests, along with advocates working to oppose systemic injustices, expect comprehensive coronial findings and appropriately targeted recommendations as the key to preventing similar deaths in the future.
Each Australian state and territory has its own coronial legislation, court and office support. As a result, the official procedures for inquiring into a death, following up on any systemic issues, and providing information to families and the general public can differ between jurisdictions. When it comes to providing publicly accessible, clear and thorough information about the outcomes of coronial investigations and inquests, there is also considerable variation across states and territories. In some jurisdictions, information is simply not available. Under-resourcing of Coroners Courts and Offices also hampers their ability to provide public information and to cooperate with external researchers and advocates. While the National Coronial Information System is a very valuable tool, it is only automatically accessible to coroners, and other potential users must seek approval to use it and in most cases pay a significant fee.
Nevertheless, in all state and territory jurisdictions, procedures and standards for coronial investigations and inquests are required to adhere to Australia’s international treaty obligations to respect, protect and fulfil the human right to life. Best practice approaches to inquests that have been developed in the last few decades therefore focus on the goals of truth, fairness, accountability, healing and an increased emphasis on prevention. Best practice consequently also requires independent inquiry into system failure and identification of any institutional responsibility and systemic issues to be backed up by appropriately directed practical recommendations to prevent future deaths. In reality, however, many families who have lost loved ones experience the coronial process and its aftermath as traumatic, mystifying, frustrating and disempowering. The human rights standard that coronial investigations be independent is also not usually adhered to when police are potentially implicated in a death. Another common source of anguish for family members concerns the considerable time that can elapse between when a death is first discovered and when coroner’s findings are made. Delays of up to five years are not uncommon, and in 2011–12, no state or territory reached the national standard for acceptable backlog of cases. Many other difficulties experienced by families are due to a general failure across jurisdictions to fully implement into practice the right of families to participate in coronial processes concerning their loved ones.
The content of coronial recommendations and their potential influence on death prevention are of particular concern to family members and advocates. Although there have been recent reforms in several states and territories, the emphasis on prevention and on the role of coronial recommendations varies considerably. Coroners also often have little assistance to help them formulate their findings and recommendations.
Families and advocates also need to know what responses have been made by government departments and other agencies to coronial recommendations addressed to them, together with information about how recommendations are being implemented, and how implementation will be monitored to ensure that avoidable deaths are prevented in the future. However, most states and territories do not legally require responses to all coronial recommendations in their jurisdiction, meaning that particular recommendations may never be followed up, and can even be lost. In most jurisdictions it is also difficult to find public information about whether recommendations are responded to, and in what manner.
Due to a lack of monitoring and little in the way of collection of information about implementation, it is difficult to assess the impact of coronial recommendations upon the prevention of deaths in Australia, either generally or in relation to any particular kind of death. Jurisdictions that mandate responses to recommendations are likely to have a better rate of implementation. However, in general, implementation of recommendations is an ad hoc process. Whether or not particular recommendations are implemented is influenced by the way in which recommendations are framed and targeted by coroners, whether implementation accords with government policies and priorities, and whether a proactive system for review of recommendations exists within the targeted organisation. Other relevant factors include media, family, community and advocacy group pressure.
Coroners may therefore make potentially life-saving recommendations, only for them never to be responded to or implemented, with no follow-up and no public awareness of what has happened. Within any particular jurisdiction, even where recommendations are implemented, this may not happen in time to prevent other similar deaths. The present patchwork system also means that even though coroners may be sharing information across Australia, government and other agencies in one jurisdiction are unlikely to learn effectively and in a timely way from a death, or even a pattern of deaths, in another jurisdiction. This is evident even in contexts where there are clear national ramifications, such as deaths in custody. For this reason, the Royal Commission into Aboriginal Deaths in Custody recommended reform of the state and territory coronial systems. However, over 20 years later, none of the Royal Commission’s recommendations have been implemented in a systematic, nationwide manner. The piecemeal approach to death prevention means that there are other striking examples where lessons have failed to be learned across and even within jurisdictions, resulting in more avoidable deaths. The systemic failure that led to the death is often perpetuated due to an inability of governments and other entities to respond effectively. One tragic illustration is the example of blind cord deaths, where infants are accidentally strangled or hanged due to becoming entangled in a blind or curtain cord. Despite the risks having been raised by coroners and researchers for many years, infants have continued to die, and even now it is unclear whether all states and territories have implemented ongoing community campaigns and strategies to render safe those blinds and curtains that are already installed. Blind cord deaths therefore starkly demonstrate the lack of clear recommendation and implementation pathways across states and territories, together with, in most jurisdictions, few if any mechanisms to monitor the progress of recommendations, and consequently little in the way of public accountability.This report makes recommendations aimed at ‘joining up’ independent and effective coronial systems across Australian jurisdictions, in order to enhance death prevention via learning from past deaths.
While there are some limited opportunities to contribute to joining up justice at the state and territory level, State, Territory and Commonwealth Governments are increasingly recognising that in order to more effectively and consistently address many legal and social issues in Australia, a federally coordinated, cross-border approach of some kind is needed. We discuss the examples of national initiatives to better prevent and respond to violence against women and children, the coronial recommendations and Federal Government response concerning the death of Dianne Brimble, and proposals to centrally record coronial recommendations and share information across states and territories concerning family/domestic violence homicides.
Greater emphasis on prevention must be accompanied by best practice support and sensitively facilitated participation of families in investigations, inquests and all other aspects of the required systemic response.Part 2 discusses how families need legal representation and other support in order to be able to exercise their human rights to fully participate in the inquest.
legal assistance is often not affordable, and appropriate support is not always available. Within the limits of accessible public information, we paint a picture of the legal assistance currently available for families, and describe the role of various public legal service providers. The reality for many families is that they may not even be aware that they have the right to a lawyer, let alone be able to obtain legal help throughout the process. We therefore make recommendations that aim to ensure equity in legal assistance for families in the inquest process and coronial-related matters.
Public interest organisations also play an important role in supporting and advocating on behalf of families, or raising prevention issues as interveners, yet their involvement is often limited by lack of resources. The Paper therefore goes on to outline why a new national non-government organisation - a National Inquest Clearing House (NICH) - is needed to consolidate and share the knowledge and understanding gained by legal assistance providers over many years. In playing this ‘joining up’ role, the NICH will both enhance inquest representation for families and community organisations, and improve the coronial process by consolidating and sharing knowledge in order to focus on prevention of avoidable deaths.
We hope that stakeholders will work with us in developing and advocating for the directions and strategies we should use to support ‘joined up’ independent and effective coronial systems across Australian jurisdictions - systems which facilitate learning from past deaths in order to prevent future avoidable deaths, and which provide enhanced support for families at all stages of the coronial process.The Alliance makes several recommendations -
1. All State and Territory governments should act to adopt core best practice and guarantee that the preservation of life is central to their coronial systems, by introducing, as appropriate to the jurisdiction, prevention and reporting amendments to their coronial legislation. These amendments should include or have the effect of: a preamble that expresses the role of the coronial system as involving the independent investigation of deaths, for the purpose of finding the causes of those deaths and to contribute to the prevention of avoidable deaths and the promotion of public health and safety and the administration of justice, across Australia; purpose and objects provisions that include the prevention of avoidable deaths through the findings of the investigation, and the making of findings, comments and recommendations, by coroners; a provision empowering coroners to make comments and recommendations on any matter connected with a death investigated at an inquest, including public health or safety and the administration of justice; and a provision empowering coroners to make recommendations to any Minister, public statutory authority or entity.
2. The Commonwealth Government should work with State and Territory governments to achieve a uniform national coronial public reporting and review scheme for coronial findings and recommendations which: guarantees that all coronial recommendations will be considered and meaningfully responded to by the government agencies or entities to whom they are directed (updates on progress towards implementation should be provided by the relevant agency or entity where the initial response was only a holding response); provides ready public access to all coronial findings, recommendations, responses and updates; records and makes publicly available (including via a Coroners Annual Report to the relevant State or Territory Parliament and on the Internet) whether or not coronial recommendations have been implemented by responsible government agencies or entities; enables evaluation of the impact of coronial recommendations upon the prevention of deaths; adheres to timeliness at every step of the recommendations process; and · provides feedback to families (including a copy of recommendations and responses to families, other parties and legal representatives) at every step of the recommendations process.
3. As an important element of Recommendation 2, State and Territory Governments should: appoint coronial liaison officers to enable public sector agencies to respond to coronial recommendations in a timely and appropriate manner; and allocate, for each jurisdiction, the responsibility for monitoring the implementation of coronial recommendations to an independent statutory body adequately resourced for the task and with powers to alert government and public about any key implementation issues.
4. The Commonwealth Government should work with State and Territory governments to enable each jurisdiction to effectively recognise the international human rights obligation to respect, protect and fulfil the right to life by introducing, as appropriate, amendments to their coronial legislation so that coronial investigation is independent, appropriately and adequately resourced, and considers systemic issues. In particular, in investigations into deaths in police custody or in the course of police operations, the agency conducting the primary investigation at the direction of the Coroner must have practical, institutional and hierarchical independence from the police.
5. Primary and secondary coronial legislation in the various jurisdictions should be amended or introduced in recognition of the principle that participation of families in the inquest process is a fundamental component of Australia's international human rights obligations. Specifically, reforms must enable families and friends of the deceased to experience the coronial process in as sensitive, timely and fully informed a manner as possible, regardless of the circumstances of the death. These reforms must include: provision of proper and timely notification of family members and proactive provision of accessible, timely and explanatory information, at every stage of investigation and inquest processes. This should include as comprehensive as possible access to police and coronial documents, and accessible material on families’ legal rights; no unreasonable delays in investigations and inquests; resolution of any cultural or spiritual conflicts raised by the coronial process; recognition of the need to have Aboriginal and Torres Strait Islander legal and health services and communities involved in the coronial process; and provision of quality, accessible, and culturally and spiritually appropriate support and counselling services for families.
6. All States and Territories should establish or continue funding for their own Coroners Prevention Unit similar to the current Victorian model, including funding to facilitate an effective role for the Unit in the reforms in Recommendations 1-5.
7. State and Territory Governments should adequately fund their Coroners Courts with the aim of reducing delays in inquests, investigations and the delivery of findings, in order to at least conform to current national standards.
8. The remaining recommendations of the National Report of the Royal Commission into Aboriginal Deaths in Custody (1991) must be implemented.
9. As a fundamental component of Australia's international human rights obligations under the right to life, funding and availability of legal assistance providers must be sufficient to enable all families to obtain, without financial hardship, effective legal advice and representation for investigations and inquests, at a level that is consistent with the level of legal representation accorded to government and other institutional parties in the inquest. A specific pool of funds should be made available to enable community legal centres to provide legal representation for families at inquests.
10. Legal assistance services must be sufficient to enable all advocacy organisations with a sufficient interest to intervene in inquests, as a fundamental component of Australia's international human rights obligations under the right to life.
11. An independent National Inquest Clearing House, along the lines of INQUEST (UK), should be established and adequately funded.