Courts Legislation Amendment Bill

About this Item
SpeakersHartcher Mr Chris; Gaudry Mr Bryce
BusinessBill, Second Reading

Page: 6667
    Second Reading

    Debate resumed from 30 May.

    Mr HARTCHER (Gosford) [8.41 p.m.]: The bill introduces a number of miscellaneous amendments to legislation affecting the operation of courts in New South Wales. The Coalition does not oppose the bill, however, it has a number of concerns. The bill amends a number of Acts relating to the court process and I do not intend to go through them all. The main area of concern relates to the amendment to the Coroners Act and the role of the Coroners Court. The amendment seeks to introduce a section which will, in summary, compel witnesses to give evidence if granted immunity from prosecution in accordance with the provisions of section 128 of the Evidence Act 1995. The Government based the amendment on a decision of the Court of Appeal in Decker v State Coroner of New South Wales and Anor (1999) NSWSC 369 handed down on 22 April 1999.

    In that decision Justice Adams expressed the conviction that a scheme of evidence such as that provided by the Evidence Act 1995 would be inappropriately imposed on a Coroners Court. Notwithstanding that finding, the Government has introduced this enabling bill as part of an omnibus of bills to impose that regime. That is especially so of section 128. The reason why that is opposed, and it is relevant to this debate, is set out by the Law Society of New South Wales in its submission to me and to the Attorney General. The submission stated:
        … a Coronial inquest or inquiry is inquisitorial. As such the Coroner can and often does take an active role in the investigation and can direct that certain inquiries or tests or lines of inquiry be conducted (see for example s.48–Coroner can order medical tests and/or special examinations).

        Therefore, as the Coroner is an active participant in the proceedings it is incongruous for the same person to be empowered under a s.128 type provision to require … a witness to give evidence which "may tend to prove that the witness has committed an offence".
    The Coroner would act as an investigator and if he is given the powers of compulsion, that is not an appropriate role. That would deny a person the protection of the right to silence in court. The Law Society's letter continued:
        This is so notwithstanding that upon requiring the witness to give that evidence a Court must issue a certificate which prevents that evidence (or information, document or thing obtained from directly or indirectly that evidence) being used against that person.

        Further, the Law Society submits that given that Section 33 of the Coroners Act provides "a Coroner holding an inquest or enquiry shall not be bound to observe the rules of procedure and evidence applicable to proceedings before the Court …" It is clear that the Coroners Court does and can receive hearsay evidence, evidence based on rumour, supposition, conjecture and, indeed, a mixture of all the above whilst it is discharging its duty in holding the inquest or inquiry. It is completely unsatisfactory for a Certificate with the ramifications of a certificate under Section 128 of the Evidence Act, 1995 to be issued to a person in those circumstances. It is also contrary to the remainder of Section 33 of the Coroners Act which states, "but no witness shall be compelled to answer any question which criminates him or tends to criminate him of any felony, misdemeanour or offence."
        … Section 33 recognises the fundamental principle that a person should not be forced to incriminate himself or herself.

    That is a consistent theme throughout common law and is well known from American television shows and movies. The Fifth Amendment to the Constitution of the United States of America embodies the fundamental principle which was first enunciated or declared in English law in the Bill of Rights of 1690. It states that no person in proceedings in law shall be forced to criminate himself. The letter from the Law Society continued:
        In ordinary criminal proceedings, a defendant is not obliged to give evidence. Indeed, Section 128 specifically provides that the instant Section "does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act, the doing of which is in fact in issue, or (b) had a state of mind, the existence of which is a fact in issue".
        This again highlights the dichotomy between the inquisitorial nature of criminal proceedings on the one hand and the presumption of innocence, the concept which underpins a criminal trial. It would be perverse to require a putative defendant on one hand to give evidence which incriminates himself or herself in an inquisitorial proceeding known as a coronial inquest or inquiry and on the other hand maintain (as indeed it should be) the presumption of innocence and the right to silence of the defended in criminal proceedings.
        On a public policy basis, this perversity has the tendency to undermine the public confidence in the rule of law. The impartiality of the Courts, if this proposal was implemented, would tend to be viewed as being seriously undermined. The public would find it difficult to accept why, in a coronial proceeding (which for all intents and purposes appears to the public to be ordinary "Court proceedings") a defendant can be forced to give evidence against him or herself and the same rule does not apply when a person appears (often) before the very same Magistrate who is then conducting committal proceedings or later appears before a Judge and Jury.

    The Coalition indicates a concern about this. The coronial court system has worked well. Most people would view the former State Coroner especially as a person of great integrity and ability. The present State Coroner was appointed only recently, and we all wish him well. I do not know much about him but obviously we will need to give him a fair go and wait to see how his work unfolds. To change the structure of the coronial court in a fairly dramatic way, to deny the right to silence and make persons subject to a compulsion to answer questions, makes the coronial court more like the ICAC or a royal commission than an ordinary court of law.

    That may be a desirable result, but little evidence has been put before the Parliament, other than in the Minister's second reading speech. The Minister quoted the decision of the court in Decker v State Coroner of New South Wales and Anor in which the Court of Appeal very carefully looked at this matter and determined that this concept does not fit within the existing process of the courts of New South Wales and would, therefore, be an undesirable intrusion into the judicial system. That is the view of the court and of the Law Society. I am not aware of a submission from the Bar Association but I would be surprised if it did not share the view expressed by the Law Society.

    The view of the Law Society is that the bill should be amended to make it clear that the right against self-incrimination is preserved and that a person continues to have the right to silence. I foreshadow those concerns. I do not rule out the Coalition in another place considering an amendment. At this stage we do not propose to divide upon the legislation. We will continue to consider the bill and monitor its passage. The Law Society also makes some points about practicality. Many coroners are clerks of the Local Court. In particular, clerks of the Local Court in country New South Wales do a fair amount of coronial work. I know from my own experience as a solicitor on the Central Coast that the Coroners Court was busy investigating fires and deaths. Not all clerks of the Local Court are legally qualified; many are undergoing courses and legal study. The Law Society states:
        It is inherently dangerous to empower an unqualified Clerk of the Local Court who may rarely exercise his or her office as a coroner to give certificates under Section 128 with the serious ramifications that that may have for future conduct of criminal trials.
    The Office of the Director of Public Prosecutions should be conscious of that. I will be interested to hear what the Parliamentary Secretary Assisting the Minister for Police, representing the Minister and no doubt acting on the advice of the Minister's staff, has to say in reply to the submission that the future conduct of criminal trials could be hampered, rather than aided, by certificates of immunity under section 128. The finding in a coronial court could have an undesirable impact on a criminal trial, because there could be argument as to how the evidence came to the knowledge of the Crown_whether through the coronial court inquisition or through some other source. If the evidence came from the Coronial Court inquisition it cannot be used, as a certificate has been granted under section 128. The Law Society also makes the following point:
        As far as it can be determined there is no provision for overturning or withdrawing such a certificate once it is given by a Court.
    That may need to be considered, if there is to be a right of the Supreme Court to oversight the issuing of a certificate and to seek its withdrawal or overturning. The Law Society also states:
        Section 128(3) and 128(6) of the Evidence Act, 1995 makes it mandatory for a Court to issue such a certificate in the circumstances contemplated in that section. Whilst it is arguable that the Supreme Court would have inherent jurisdiction to set such a certificate aside, it is queried as to whether it would be again in the public interest for confidence in the judiciary (albeit perhaps at the most junior level)—
    As in the Coroners Court–
        to be undermined for the dubious benefit of importing provisions similar to Section 128 into the Coroners Act, 1980.
    I turn to a further area of concern that has been raised and needs to be noted, that is, the amendments to sections 96 and 97 of the Workplace Injury Management and Workers Compensation Act in relation to conciliators. The Opposition has no objection to those amendments. However, we have a concern about the proposed amendments to section 97 to empower the court to revoke a direction by a conciliator as to weekly payments of compensation.

    The Law Society proposes that the bill should be amended to make it clear that a direction or recommendation by a conciliator as to any matter, not merely weekly payments, can be revoked by the Compensation Court. The Compensation Court should have clear power to revoke directions or recommendations by conciliators in all aspects. There should be a general power of review, not merely a power of review on the decision of weekly payments. The Government may argue that the court already has that power and that the analysis by the Law Society of New South Wales is wrong. I would be interested if that were the case. I am not persuaded that the Law Society's view is incorrect. Once again, the Coalition will reserve the right to continue to consider and monitor that aspect of the legislation.

    If there is further consideration in another place the Coalition reserves the right to vary its position, upon the submission of further evidence. It is up to the Attorney General, or his representatives, to answer both those points. Firstly, why is section 128 needed? The Attorney, in his second reading speech, said it would be done. But he did not give clear facts and figures, a submission from a report or an analysis from an inquiry or the Law Reform Commission as to why section 128 needed to be imported into the Coroners Court. Secondly, what will powers of the Compensation Court be once section 97 is amended in the way suggested by this bill? I conclude my brief remarks with those observations.

    Mr GAUDRY (Newcastle—Parliamentary Secretary), on behalf of Mr Whelan [8.56 p.m.], in reply: I have listened with interest to the honourable member for Gosford in his learned dissertation on this part of the Act and the importance of coronial inquests in getting to the heart of issues which are of great consequence to individuals and, in many cases, to large numbers of people within the community. The Minister, in his second reading speech, pointed out that schedule 2 of the bill, which amends the Coroners Act 1980, allows coroners who are magistrates to compel witnesses to give evidence in circumstances where they may incriminate themselves provided a court gives the witness immunity from prosecution through the issuing of a certificate.

    As I have stated, many coronial inquests deal with important issues that get to the heart of the matter. As the honourable member for Gosford said, the Coroner is acting in an inquisitorial manner. He is pursuing the truth by seeking to take evidence, and he is directly involved in the taking of that evidence. As the Minister in the other place said, the amendment arises out of the Thredbo inquest where a crucial witness declined to answer questions on the ground that the answers might incriminate him. The State Coroner upheld the witness' objection and stood him down. In doing so, he noted that the Coroners Court is not subject to the Evidence Act, but added that even if it were he would use his discretion not to grant a certificate of immunity from prosecution.

    As the honourable member said, that decision was challenged in Decker v State Coroner of New South Wales, in which it was determined that the Evidence Act does not apply to the Coroners Court. Further, even if section 128 of the Act did apply, the State Coroner did not err in exercising his discretion to decline to issue a section 128 to compel the witness to give evidence. As the Minister in the other place pointed out, the effect of the provisions of section 33 of the Coroners Act and the decision in Decker v State Coroner of New South Wales is that a Coroner has no method of compelling a witness to give evidence in circumstances where the witness has properly raised objection to giving evidence on the ground that it may incriminate him or her.

    The amendments to section 33 of the Act will allow the Coroner to compel witnesses to give evidence in substantially the same way as provided for in section 128 of the Evidence Act. I refer again to the coronial inquest that was the largest and most complex in New South Wales, if I recall correctly, which could have faltered on the inability of a witness to give evidence that was crucial to the determination of the inquest on the basis of self-incrimination. At that stage there was no mechanism by which the Coroner could enable that inquest to proceed without incriminating the witness. Other courts have the power to issue certificates granting immunity, while having the power to compel witnesses. The amendment will put coroners, who are magistrates, in exactly the same position.

    Honourable members opposite and any person of sound mind would consider it important to give a witness immunity to bring forward essential material to determine a matter of public importance and public safety; to enable the truth to out; and to assist in both the emotional and human issues related to the deaths in that situation, and the underlying public responsibility for the disaster that occurred in that coronial inquest. The proposal of the Law Society of a wider power for conciliators went further than weekly payments. It is not the subject of consultation with heads of jurisdiction and falls wider than the Government's proposed amendment. The Government is happy to consider such amendment in future courts legislation. I commend the bill to the House.

    Motion agreed to.

    Bill read a second time and passed through remaining stages.