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CORONERS BILL
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9 October 2008
Statement of Compatibility
HULLS
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CORONERS BILL
Statement of compatibility
Mr HULLS (Attorney-General) tabled following statement in accordance with
Charter of Human Rights and Responsibilities Act:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities (charter), I make this statement of compatibility with
respect to the Coroners Bill 2008 (bill).
In my opinion, the bill, as introduced to the Legislative Assembly, is
compatible with human rights protected by the charter. I base my opinion on
the reasons outlined in this statement.
Overview of the bill
The bill will amend the Coroners Act 1985, establish the Coroners Court of
Victoria and the Coronial Council of Victoria and provide for the state's
coronial system and investigative procedure.
Human rights issues
The provisions of the bill raise a number of human rights issues.
1. Right to life
The right to life is protected by section 9 of the charter. In other
jurisdictions this right has been interpreted to include an obligation on
government to ensure an effective investigation into certain deaths.
As the most significant investigative mechanism into reportable and reviewable
deaths, the coronial system gives effect to this right. The operation of an
effective investigation process raises other relevant rights. Limitations on
these rights have been found to be reasonable when balancing and giving effect
to this aspect of the right to life.
2. The general application of the charter to the Coroners Court
The bill amends the definition of 'court' in the charter to include the
Coroners Court which is specified in the bill to be an inquisitorial court.
When acting in an administrative capacity, the Coroners Court will be a public
authority and will be bound by section 38 of the charter. Further, statutory
provisions and discretions in the bill will need to be interpreted, where
possible, compatibly with the human rights set out in the charter.
3. Reporting obligations
Part 3 of the bill includes obligations to report reportable and reviewable
deaths. Except under clause 12, these obligations arise within the context of
professional duties. Clause 12 applies to a person who has reasonable grounds
to believe that a reportable death has not been reported. Clause 49 provides
that the principal registrar must notify certain persons of specified
information.
Free expression
The right to freedom of expression in section 15 of the charter has been
interpreted in some jurisdictions to include a right not to impart
information.
To the extent that these provisions impose any restriction on free expression,
they come within section 15(3) of the charter, as they are reasonably
necessary for public health and/or the maintenance of public order.
Accordingly these provisions are compatible with the right to freedom of
expression in section 15 of the charter.
4. Powers relating to the body of the deceased person
Clause 22 of the bill provides that the coroner controls the body of the
deceased person until released under clause 47. Under clauses 23 and 24 a
coroner may provide a body for the performance of preliminary examinations and
direct the performance of procedures for the purpose of identification. Clause
25 sets out the situations in which a coroner must direct the performance of
an autopsy. The state coroner may also authorise the exhumation of a body
under clause 46.
Decisions in relation to the release of a body, autopsies and exhumations are
subject to the appeal rights set out in part 7 of the bill.
The nature of the rights being limited
The exercise of these functions will sometimes conflict with or impinge the
ability to adhere with or carry out religious and cultural practices and
beliefs surrounding death. Consequently these provisions engage and
potentially limit the right to freedom of religion and cultural rights
protected by sections 14 and 19 of the charter respectively. The
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freedom to have or adopt a religion or belief in worship, observance, practice
or teaching and enjoy culture is also protected by the right to equality
and the freedom of expression included in the charter at sections
8 and 15. The United Nations Human Rights Committee has interpreted the
rights to privacy and family life broadly to include a person's relationship
with their ancestors. Section 13 of the charter provides that a person has
the right not to have his or her privacy, family, home or correspondence
unlawfully or arbitrarily interfered with.
These provisions in the bill do not constitute an unlawful and arbitrary
interference with private family life, as they occur under the authority of,
and in the precise and prescribed circumstances set out in, the bill
incorporating the safeguards discussed below.
However, to the extent that rights are limited, I consider that the limits are
reasonable and justifiable in a free and democratic society for the purposes
of section 7(2) of the charter having regard to the following factors:
The importance of the purpose of the limitation
Any restriction of these rights will occur in circumstances where it is
necessary to give effect to the wider public interest in effectively
investigating deaths and protecting the right to life.
The nature and extent of the limitation
When exercising these functions, directions and authorisations under the bill,
clause 8 of the bill, which operates in conjunction with section 38 of the
charter, requires that, when these functions are exercised, regard must be
had, where practicable and appropriate, to the specified needs or interests of
family members, including of the different cultural beliefs and practices
surrounding death.
Clause 21 of the bill ensures that the senior next of kin to the deceased
person, and any other person who has advised the court that they are a person
interested in the investigation of the death, is notified of the coronial
process as soon as practicable.
In relation to autopsies, a direction can only be given where a coroner
believes it is necessary and appropriate.
The coroner is able to impose conditions on the way the procedures are to be
conducted so the autopsy can be carried out in a manner that is as sympathetic
to religious and cultural beliefs as is reasonably practicable and
appropriate. The senior next of kin must be notified of a direction and can
object to the conduct of an autopsy, and can appeal the direction and any
conditions imposed on an autopsy.
Clause 45 of the bill generally requires that the senior next of kin must be
notified of an intention to authorise an exhumation and of their rights both
to suggest how the exhumation should be conducted and to oppose the proposed
exhumation. A coroner must have regard to any suggestions made by the senior
next of kin or any other person who provides written suggestions in respect of
the exhumation and may impose conditions on the authorisation.
The only family member who has a right to appeal these decisions is the senior
next of kin.
The relationship between the limitation and the purpose
The ability to control the body of the deceased person and perform the
necessary examinations and procedures is directly and rationally related to
the investigative purpose of the bill. Restricting the appeal rights to the
senior next of kin is necessary to ensure the efficiency of the investigatory
process. Clause 8(b) of the bill requires that regard should be had to the
distress of those affected by the death, which can be exacerbated by
unnecessarily protracted coronial investigations.
Less restrictive means reasonably available to achieve the purpose
I consider there are no less restrictive means reasonably available to achieve
the purpose of the provisions and that the bill balances the need to recognise
and accommodate religious and cultural beliefs with the importance of
investigating and identifying the causes of death in a timely fashion.
Accordingly, I consider that these provisions are compatible with sections 13,
14 and 19 of the charter.
5. Powers relating to investigation
Restriction of access to place of death or fire
Clauses 37 and 38 permit a coroner or the Chief Commissioner of Police to take
reasonable steps to restrict access to the place, or a place reasonably
connected to where a death or fire occurred.
Clause 37 also permits the Chief Commissioner of Police to restrict access to
the place, or a place reasonably connected to where an incident has occurred
which is reasonably expected to result in the death of a person. These
provisions engage the right to privacy and limit the freedom of movement.
Cultural and religious rights may also be limited.
Privacy
Although these provisions may restrict access to a person's residence, any
interference is lawful, occurring under the authority of the bill. Clauses 37
and 38 provide that a notice outlining the restriction may be put up at the
place. Any interference is not arbitrary because it will occur in the precise
and prescribed circumstances set out in the bill for the purpose of conducting
effective investigations of reportable and reviewable deaths and fires.
Religious and cultural rights and freedom of movement
I consider that the limits upon the freedom of movement and right to freedom
of religion and cultural rights are reasonable and justifiable in a free and
democratic society for the purposes of section 7(2) of the charter, having
regard to the following factors:
The nature of the rights being limited
Under section 12 of the charter every person lawfully within Victoria has the
right to move freely within the state; to enter and leave it; and the freedom
to choose where to live. It extends to the right not to be forced to move to
or from a particular location.
The right to freedom of religion and cultural rights have been referred to
above. A restriction on access to the place of death
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may interfere with various religious and cultural practices surrounding death.
The importance of the purpose of the limitation
Unrestricted access to the place of death, incident or fire is of vital
importance to ensure that: the necessary examinations can occur; the integrity
of the place is maintained; and evidence is uncontaminated. This power is an
integral aspect of having the ability to carry out a thorough investigation
into a death or fire.
The nature and extent of the limitation
In coming to the decision to restrict access to a place the factors set out in
clause 8 are relevant. Further, the steps taken to restrict access must be
reasonable.
Therefore, the circumstances of each case, including religious and cultural
rights and the freedom of movement, will be relevant to the decision and the
extent to which access is reasonably restricted.
The relationship between the limitation and the purpose
Any resulting restriction on these rights is directly and rationally related
to the purpose of the bill.
Less restrictive means reasonably available to achieve the purpose
I consider there are no less restrictive means reasonably available.
Accordingly, I consider that these provisions are compatible with sections 12,
14 and 19 of the charter.
Search and seizure powers
Clause 39 of the bill permits a coroner to authorise a member of the police
force to search premises and seize relevant information. Clause 40 provides
that a person at premises subject to a search under clause 39 must produce
documents if directed. Under clause 41 a coroner or officer conducting a
search may do anything reasonably necessary to investigate a fire or death
including securing the premises to restrict access under clauses 37 and 38.
Privacy
To the extent that the exercise of this authority relates to private
information or permits access to residences, the right to privacy is engaged.
However, these powers arise in the controlled and prescribed circumstances set
out in the bill and are lawful.
The authorisation must specify the hours of the day and period within which
the powers may be exercised and a copy must be provided to the occupier where
practicable. Clause 8(b) is a relevant factor when issuing the authorisation
and conducting the search. Consequently, I do not consider that these
provisions can be described as arbitrary. Accordingly, these provisions are
compatible with the right to privacy under the charter.
Production of information
The obligations on certain persons to assist a coroner under clauses 32 to 36
of the bill include a requirement to provide information. Apart from clauses
32 and 34, these obligations arise within the context of professional duties.
These provisions apply to the person who reported the death or fire. Clause 40
provides that a person at premises subject to a search under clause 39 must
produce documents if directed.
A person must also produce documents or a statement requested by the coroner
under clause 42.
Free expression
To the extent that these provisions engage the right to freedom of expression
which may include the right not to impart information, they come within
section 15(3) of the charter because they are reasonably necessary for public
health and/or the maintenance of public order. Accordingly, the bill is
compatible with the right to freedom of expression in section 15 of the
charter.
6. Powers relating to inquests into deaths and fires
Compelled evidence and attendance
Clause 55 provides that a coroner may: summon a person to attend the inquest
as a witness; order a witness to answer questions; and order a person to
produce documents or material. This provision engages the right to freedom of
expression and the right not to be compelled to testify against oneself, and
limits the freedom of movement.
Free expression
In relation to the freedom of expression, the obligation imposed by this
provision to provide the required information and answer questions comes
within the express limitation in section 15(3) of the charter described above.
Accordingly, the provision is compatible with the right to freedom of
expression in section 15 of the charter.
Self-incrimination
Section 25(2)(k) of the charter provides that a person charged with a criminal
offence is entitled 'not to be compelled to testify against himself or herself
or to confess guilt'. The right to a fair hearing in section 24(1) of the
charter has also been interpreted in the United Kingdom and European Court of
Human Rights to incorporate a privilege against self-incrimination. Where
compulsory questioning powers are used to require a person who has been
charged with an offence to answer questions, section 25(2)(k) of the charter
is engaged. The right does not apply to the production of documents. However
the right does not preclude the use of compulsory questioning powers for
legitimate purposes in separate proceedings where a direct-use immunity is
provided.
Clause 57 provides that a witness can be exempted from giving evidence
(including documents) when there are reasonable grounds to believe that the
provision of evidence may incriminate the witness.
In instances where grounds for this exemption exist but a coroner determines
that it is in the interests of justice for the witness to give the evidence,
the bill provides that the evidence cannot be used directly or indirectly
against the person except in respect of the falsity of the evidence.
Accordingly, I am of the view that this provision is compatible with section
25(2)(k) of the charter.
Freedom of movement
To the extent that a person is required to appear at the inquest that person's
freedom of movement is limited. I consider that the limits upon the freedom of
movement are reasonable and justifiable in a free and democratic society for
the purposes of
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section 7(2) of the charter, having regard to the following factors:
The nature of the right being limited
The right to freely move within the state has been described above.
The importance of the purpose of the limitation
The limitation is important because it allows a coroner to obtain the
information necessary to effectively investigate the relevant death or fire.
The nature and extent of the limitation
The limitation on the freedom to move freely is restricted only to the extent
and time that the person is compelled to be physically present before the
coroner to provide information. Before the coroner can compel the attendance
and answering of questions by a witness, they must believe that the exercise
of these powers is necessary for the inquest or to determine whether an
inquest is necessary.
The relationship between the limitation and the purpose
The limitation is directly and rationally related to its purpose: to enable
the coroner to acquire the information relevant to the death or fire the
subject of the inquest.
Less restrictive means reasonably available to achieve the purpose
I consider there are no less restrictive means reasonably available.
Accordingly, I consider that this provision is compatible with section 12 of
the charter.
7. Disclosure, or restriction on disclosure, of information
Restriction on the disclosure of information
Clause 73 provides that a coroner must prohibit the publication of any
documents, material or evidence provided to the court as part of an
investigation or inquest where the coroner reasonably believes that it would
be likely to prejudice the fair trial of a person or be contrary to the public
interest. Breach of such an order is an offence.
Free expression
In the event that an order is made regarding the publication of this
information, the right to free expression is engaged which includes the
freedom to seek, receive and impart information and ideas of all kinds.
However, the ability to make such an order on the basis that publication would
be likely to prejudice the fair trial of a person comes within section 15(3)
of the charter, as it is reasonably necessary to protect the rights and
reputation of other persons. Further, the scope of the public interest giving
rise to an obligation to prohibit publication on that basis would be construed
in a manner compatible with the rights in the charter.
Accordingly, I do not consider that clause 73 can be regarded as arbitrary and
I am of the view that it is compatible with section 15 of the charter.
Disclosure of information
Clause 115 enables a coroner to release documents to various persons. Clause
73 provides for the publication of findings, comments and recommendations made
following an inquest.
Privacy
To the extent that this information contains private information it engages
the right to privacy and reputation. However, disclosures under the clauses
are not unlawful. Under clause 115, certain information must be provided
unless otherwise ordered by a coroner, to the senior next of kin and an
interested person. The requirement that inquest findings, comments and
recommendations must be published under clause 73 is an aspect of an effective
investigation.
Disclosures under these clauses are subject to discretion and subject to
clause 8 of the bill and section 38 of the charter. Further, the release of
all documents can be the subject of conditions. It is an offence to breach the
conditions.
Free expression
In the event that conditions are imposed on the release of documents, the
right to free expression, as described above, is engaged. However, the ability
to impose these conditions comes within section 15(3) of the charter, as they
are reasonably necessary to respect the rights and reputation of other
persons, for public health and the maintenance of public order.
Accordingly, I do not consider that these clauses can be regarded as arbitrary
and I am of the view that they are compatible with sections 13 and 15 of the
charter.
Conclusion
I consider that the bill is compatible with the Charter of Human Rights and
Responsibilities because to the extent that some provisions do raise human
rights issues:
these provisions do not limit human rights; or
to the extent that some provisions may limit human rights, those limitations
are reasonable and demonstrably justified in a free and democratic society.
Rob Hulls, MP Attorney GeneralMr HULLS (Attorney-General) -- I move: That this bill be now read a second time. The Coroners Bill 2008 coincides with our celebration of 20 years of the Coronial Services Centre of Victoria and its significant contribution to public health and safety during this time. The bill forms part of this government's broad coronial reform strategy with objectives to: develop integrated governance, legislative and service delivery frameworks to support a modern and responsive coronial system; Second reading
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improve communication with and services to families who interact with the coronial process; strengthen the coroner's prevention role; improve the delivery of coronial services across the system, including rural service delivery; upgrade facilities at the Coronial Services Centre and in regional areas; improve education and training across the coronial system; and enhance and strengthen the coronial system by developing clearer death reporting and certification processes, establishing improved case management and records management systems and strengthening relationships amongst key stakeholders in the sector. The coronial system plays an important role in Victorian society. It must endeavour to provide independent answers to those grieving families affected by the investigation of sudden, unexpected and tragic deaths by the coroner. Those deaths can often involve vulnerable members of our community, such as those who are placed in the care or custody of the state. Our coronial system must take a broad public health approach to investigation to clarify on the public record the causes and circumstances of death, to provide public hearings into those matters where it is appropriate and to draw lessons from deaths so as to minimise the risks of recurrence, where possible, in the future. Victoria's coronial system has been regarded as a leader in its field and has previously drawn praise in international circles. The Coroners Act 1985 was recognised as an innovative piece of legislation when it was introduced and the physical co-location of coronial services at that time allowed for a close working relationship between the state coroner and the Victorian Institute of Forensic Medicine. The National Coroners Information System was also established in 1998 and developed a world-first national database of coroners' information which has facilitated the monitoring of deaths, prevention research and the development of prevention measures in relation to certain deaths. It is timely therefore to renew Victoria's place as a leader in coronial practice and modernise the jurisdiction. The development of the bill draws extensively from the work of the Victorian Parliament Law Reform Committee, which released its final report on the Coroners Act 1985 in September 2006 with 138 recommendations for legislative and operational reform across the coronial system. The government welcomed the committee's report and established a steering committee comprising of representatives across the coronial sector to consider the committee's recommendations and their implications for different agencies. This process resulted in the government response which was tabled in Parliament in March 2007. The government response accepted the majority of the committee's recommendations, noted that many recommendations had already been implemented and highlighted that the release of the report coincided with a period of significant change at the State Coroner's Office. Where the government response departed from the committee's recommendations, alternative and more appropriate measures were developed in consultation with key stakeholders to address the underlying issues identified by the committee. Following the release of the government response, further engagement took place with the coronial sector under the leadership of the new state coroner, Her Honour Judge Jennifer Coate, which refined the development of the bill and the final package of coronial reforms. As a result, the bill is complemented and supported by a number of key projects, including the delivery of a training package through the Judicial College of Victoria specifically developed for coroners and the development of a coroners court bench book. The bench book will be presented online and improve the operation of regional coronial services. The coroners' training will be designed to take into account issues raised by the committee including cultural and family issues, the conduct of inquests, the implications of the bill and the development of prevention recommendations. There will also be new roles introduced at the registry of births, deaths and marriages to audit the death certification process and monitor trends in the reporting of deaths to the coroner. The bill also coincides with a significant refurbishment project to modernise the Coronial Services Centre which is currently under way. This redevelopment is designed to suit the coroners court and the Victorian Institute of Forensic Medicine's future growth requirements, and ultimately provide improved integration and efficiency across both sites. The bill is consistent with the government's 2006 Access to Justice Policy statement, the 2004 justice statement, the Growing Victoria Together goal to build friendly, confident and safe communities and A Fairer Victoria which outlines a commitment to improving access to justice. It also implements recommendations of the 1991 final report of the Royal Commission into
Page 4035
Aboriginal Deaths in Custody and of the subsequent 2005 review under the Victorian Aboriginal justice agreement mark 1. Two key themes emerged in the Victorian Parliament Law Reform Committee's final report. Firstly, the need for the coronial system to improve services to families. Families reported to the committee that they needed to have increased access to information about the coronial process, including the need for families to be involved in the process and to be informed about their rights and key events. There was also a need for coronial law to accommodate, where practicable, spiritual, cultural and other considerations. Families required sensitive contact from staff and better information on the availability of counselling and services. The bill addresses these issues and introduces objectives which acknowledge and strengthen the position of families and accommodate cultural needs. These enshrine the most extensive principles and objectives of any coronial jurisdiction in Australia. Further, a set of family principles is currently being developed with families who have experienced the coronial system. These principles outline appropriate service standards and expectations in the coronial sector. Secondly, there was a need to strengthen the prevention role of the coroner. Whilst the Victorian coronial system has an impressive history in the area of prevention, including recommendations regarding tractor rollover protection structures, safety barriers for swimming pools, suicide prevention in prison cell design, and mistral fans, the committee recognised that the role could be further supported. The bill addresses this issue and is supported by the establishment of the first coroner's prevention unit, which will assist the coroner in relation to the formulation of appropriate prevention recommendations as well as help monitor and evaluate the effectiveness of those recommendations. The bill will also establish the coroners court of Victoria as a specialist inquisitorial court and create the first coronial council in Australia to provide advice to the Attorney-General regarding the operation of the coronial system. I will now highlight significant features of the bill. Objectives The bill introduces objectives which give guidance in the administration and interpretation of the bill. Those objectives acknowledge the need to avoid unnecessary duplication and expedite investigations, where appropriate. They also encourage practices which acknowledge: that a death is distressing and may require referral for professional support, such as grief counselling; the effect of unnecessarily lengthy or protracted investigations or procedures may exacerbate the distress of those affected by the death; that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected; the need for families to be informed of the particulars and the progress of the investigation; the need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information; and the desirability of promoting public health and safety and the administration of justice. The objectives also note that the coronial system should operate in a fair and efficient manner. These objectives directly respond to those issues raised by families and embed these principles into the underlying philosophy and operations of the Victorian coronial system. The jurisdiction of the coroner Victoria's coronial system is responsible for investigating deaths that are 'reportable' or 'reviewable' and for investigating some fires. The boundaries of the coroner's jurisdiction are defined by public interest, which ensures that coroners are able to investigate only those deaths which require independent and public oversight. It also recognises that coronial investigations represent state intervention into a private experience of families and should be limited to appropriate cases. The bill clarifies the types of deaths that are reportable to the coroner. For instance, there is some concern regarding which unexpected medical deaths need to be reported to the coroner. The bill clarifies that the test for unexpected medical deaths involves assessing whether the death was reasonably expected by a doctor immediately before the procedure was conducted. The bill also expands the definition of who is a 'person who is placed in care or custody' to include people who are escaping custody or whom the police are seeking to apprehend. This is consistent with the
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recommendations of the Royal Commission into Aboriginal Deaths in Custody. Further, the bill clarifies that a 'still birth' is not within the jurisdiction of the coroner. This approach is consistent with the committee's recommendations and it reflects the current law in Victoria. The bill also provides that the coroners will retain their existing jurisdiction to investigate non-fatal fires. Reviewable deaths The bill improves the reviewable death system which was introduced in 2004 to deal with multiple child deaths to a particular parent. The purpose of the reviewable death system is to ensure that children at risk of death or injury caused by a parent can be identified and protected and that families receive appropriate medical and social support. Since 2004 it has, however, been noted that many reviewable deaths have involved children who were born in an intensive care unit and were not expected to survive. These deaths often occur in IVF pregnancies, where there are premature births involving twins or triplets, or situations where there are congenital malformations. These deaths are traumatic for the parents and are not a risk indicator for child protection concerns. Capturing these deaths was an unintended consequence of the system and causes additional grief for families. The bill addresses this situation and also clarifies that the Victorian Institute of Forensic Medicine has no ongoing responsibility to monitor or investigate families once a case has been closed. Streamlining the coroner's investigation process The bill creates a streamlined process for dealing with deaths which were only reportable because they were unexpected or where there was no medical certificate of cause of death. This is a discretionary process and the coroner can determine that, in a particular case, it would be appropriate to conduct a full investigation of the death. The requirement to conduct an investigation into the circumstances of deaths that were due to natural causes is a major reason for delays in the coronial system, which causes unnecessary stress for the families of the deceased. These investigations also divert resources away from investigations that need to be made. This new process will allow the coronial system to target its resources more effectively and end a prolonged process for grieving families, where possible. The coroner's investigation power The bill thoroughly outlines the investigation powers of the coroner which helps to provide certainty for the operation of the coronial jurisdiction and guidance to those associated with the jurisdiction, including families. This includes a clarification that the coroner has the power to investigate whether a death referred to it is a reportable death. Further, the bill provides that the coroner may only investigate deaths which are less than 100 years old and it will not be obligatory for the coroner to investigate deaths that occurred between 50 and 100 years before the death was reported to the coroner. This again allows the coronial system to target its resources more efficiently. The bill for the first time comprehensively clarifies the coroners' powers with regard to the physical procedures performed on a deceased person, which are required for an effective investigation of a death. They are the preliminary examination, the identification procedure and the autopsy. The bill defines the process of a preliminary examination, the results of which allow the coroner to perform his or her functions. It also clearly outlines for family members what is included in this procedure. The bill outlines the process for an identification procedure, which is a more intrusive procedure, such as the taking of bone, to enable a person to be identified. An identification procedure may only be performed on the direction of the coroner. The bill strengthens the provisions in relation to the conduct of autopsies, including for the first time that the coroner can impose conditions on the way an autopsy is to be conducted. For example, the coroner could impose a condition that only certain body cavities be explored. This can occur after the coroner has consulted with the person performing or overseeing the autopsy and can address cultural considerations raised by a family, where appropriate. The bill also reinforces the coroners' powers relating to investigation, including a new section which permits coroners to require a person to prepare a statement within a specified time for the purposes of the investigation. This will assist the coroners in carrying out their investigations in a timely manner. Families in the coronial process The bill seeks to reinforce the position of families and, in addition to those guiding principles and objectives
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which I have already outlined above, provides further legislative measures to assist families in relation to the coronial system. The bill provides that the senior next of kin and other persons with a sufficient interest in the investigation of a death must be provided with certain information regarding their rights and the coronial process. The bill creates a right for the senior next of kin to provide suggestions in respect of how an exhumation should be conducted and provides that the state coroner must have regard to those suggestions. The bill expands the current appeal and review rights to the Supreme Court, including an appeal against a decision of a coroner that a death is not a reportable death, the findings of a coroner made in respect of a death or a fire after an investigation or an inquest as well as an order to release a body and the terms of that release. The bill also allows a person to apply to the Coroners Court for the reopening of an investigation regardless of whether an inquest has been held. Further, the bill provides that the coroner must conduct an inquest with as little formality and technicality as the interests of justice permit and take steps to ensure that the inquest is conducted in a way which it considers will make it comprehensible to interested parties and members of the family who are present at the inquest. This is consistent with the approach adopted in other jurisdictions such as the Children's Court of Victoria. The prevention role of the coroner The bill highlights, for the first time, that the preventive work of the coroner is an important function of the Coroners Court. The bill contains, as one of its purposes, to reduce the number of preventable deaths and fires through the findings of investigation of deaths and fires. In addition, the bill provides that the coroner will now be able to make recommendations to any entity rather than being restricted to ministers and public statutory authorities. The privilege against self-incrimination Consistent with Victoria's new approach in relation to evidence, the bill will limit the privilege against self-incrimination in circumstances where the interests of justice would be served. The witness will be provided with a certificate so that the evidence cannot be used against them in other Victorian proceedings. This will allow the coroner to more thoroughly conduct an investigation and may provide more answers for the families about what happened to their loved ones. The establishment of a Coroners Court The bill establishes the Coroners Court of Victoria as an inquisitorial court. This is the first Victorian court to be legislated as an inquisitorial jurisdiction. Creating an inquisitorial court will ensure that the coroners operate independently of the executive and can effectively investigate deaths without the coronial investigation becoming too adversarial. The bill requires that the head of the Coroners Court must be a judge of the County Court, recognising the importance of the role and allowing for the status of the jurisdiction to be strengthened and enhanced. The bill provides that the person who assigns a magistrate to be a coroner must have regard to the experience and knowledge of the magistrate in relation to coronial investigations, investigations into injury and death and the identification of preventive measures following such investigations. This will ensure that only those with the requisite skills will be assigned to be a coroner. In addition to this, the bill provides that the state coroner is responsible for directing the professional development and continuing education and training of coroners and registrars of the Coroners Court. The bill also clearly outlines what powers cannot be delegated by a coroner to a registrar, including the power to order an autopsy. The bill requires that the state coroner must provide an annual report to the Attorney-General for tabling in Parliament. The report must contain a review of the operations of the Coroners Court, which will provide public accountability and transparency of the jurisdiction. To further facilitate the proper operation and administration of the coronial jurisdiction and support the creation of the Coroners Court, the bill provides the power to make rules and practice notes. Access to documents The government was mindful of the concerns raised in evidence before the Victorian Parliament Law Reform Committee in relation to the critical issue of access to documents in the coronial system. The bill therefore introduces a new access-to-documents regime. This regime establishes a framework which will provide
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both protection and guidance regarding access to coronial documents. The bill seeks to balance the open justice principle against considerations of individual privacy, corporate confidence and the public interest. It also takes into consideration the need for participants, including families, to be provided with information. The bill removes the presumption of public access to closed coronial investigations which is currently permitted under section 51(2) of the Coroners Act 1985 and provides that unless otherwise directed by the coroner: a senior next of kin must be provided with the report of the preliminary examination, the identification procedure and the autopsy; people who have been given leave to be an interested party will be provided with the inquest brief. The definition of inquest brief will clarify that it does not include parts of a medical file that are irrelevant to the coroner's investigation. The coroner has an important role in preventing deaths in our community and it is important that findings which contain prevention recommendations are widely available. The bill provides that, unless otherwise ordered by the coroner, findings, comments and recommendations will be published on the internet. The publication would be in accordance with any requirements in the rules. In all other circumstances, the bill provides that documents may only be released by a coroner: to an interested party who has a sufficient interest in the document; to assist a statutory body with the performance of a statutory function; to a member of the police for law enforcement purposes; for research that has been approved by an appropriate human research ethics committee; to a person if the release of the document is in the public interest; to a person specified in the court rules; or in accordance with the bill or any other law. The bill allows the coroner to grant access to a document subject to any conditions and it will be an offence to breach a condition which has been imposed. This provides the necessary balance of protections as well as appropriate access for all parties. Coronial Council The bill will create the first Coronial Council in Australia to provide advice to the Attorney-General, of its own motion or at the Attorney-General's request, regarding the operation of the coronial system. The council will ensure that the coronial system will continue to be effective and responsive to the needs of people who interact with the coronial system in the future. The council will consider emerging issues of importance to the Victorian coronial system, matters relating to the prevention role of the Coroners Court, the way the coronial system engages with families and respects the cultural diversity of families and any other matters referred by the Attorney-General. The council will be required to provide an annual report and membership will include the state coroner, the director of the Victorian Institute of Forensic Medicine and the Chief Commissioner of Police. Other members will be appointed based on their experience and the requirements of the council. Conclusions The development of the bill has been assisted by the work of many bodies, including the Victorian Parliamentary Law Reform Committee, the State Coroner's Office, the Victorian Institute of Forensic Medicine, Victoria Police, the registry of births, deaths and marriages and the Department of Human Services. I take this opportunity to thank those participants and, in particular, the former state coroner, Mr Graeme Johnstone, the director of the Victorian Institute of Forensic Medicine, Professor Stephen Cordner, and Her Honour Judge Jennifer Coate, who have participated in this long process allowing us to once again reinvigorate Victoria's coronial system. I commend the bill to the house. Debate adjourned on motion of Mr CLARK (Box Hill). Debate adjourned until Thursday, 23 October.
EDUCATION AND TRAINING REFORM FURTHER AMENDMENT BILL
Statement of compatibility
Ms PIKE (Minister for Education) tabled following statement in accordance with
Charter of Human Rights and Responsibilities Act:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities, I make this statement of compatibility with respect to the
Education and Training Reform Further Amendment Bill 2008.
In my opinion, the Education and Training Reform Further Amendment Bill 2008
as introduced to the Legislative Assembly, is compatible with the human rights
protected by the charter. I base my opinion on the reasons outlined in this
statement.
Overview of bill
The bill will make a number of amendments to the Education and Training Reform
Act 2006, as follows:
it establishes a more streamlined process for dealing with unsatisfactory
performance by government teaching employees;
it broadens and clarifies the orders that may be made by the Disciplinary
Appeals Board following a successful appeal from a termination of employment
decision of the secretary;
it creates an executive class of employees within the government teaching
service;
it allows the Victorian Registration and Qualifications Authority to
delegate certain powers and functions that relate to registered training
organisations to Vocational Education and Training Australia Limited; and
clarifies that the current ministers administering the act can deal with all
titles to education land, registered in various names, relevant to their
portfolios.
Human rights issues
1. Right to privacy -- section 13
Section 13 of the charter provides that a person has the right:
(a) not to have his or her privacy, family, home or correspondence unlawfully or
arbitrarily interfered with; and,
(b) not to have his or her reputation unlawfully attacked.
The right is based upon article 17 of the International Covenant on Civil and
Political Rights. The United Nations Human Rights Committee has referred to
the notion of privacy as revolving around protection of 'those aspects of a
person's life, or relationships with others, which one chooses to keep from
the public eye, or from outside intrusion'.
Clause 31 of the bill provides that the Victorian Registration and
Qualifications Authority (VRQA) may share information it has about the
performance of a Registered Training Organisation (RTO) with Technical and
Vocational Education and Training Australia Limited (TVET) where the VRQA
delegates its functions to TVET pursuant to clause 4.2.7A of the bill.
Generally, the information shared would not be personal information and
accordingly would not interfere with a person's private life. However, in some
situations, an RTO is an individual, and accordingly, in these circumstances,
the information shared between the VRQA and TVET will pertain to a person.
However, the information shared will be in relation to that individual's
professional performance and not information about that individual's private
life. Further, this information will only be provided to TVET to enable TVET
to monitor the professional performance of that individual, as an RTO, and
make appropriate decisions about the individual's registration as an RTO and
the education services that the individual, as an RTO, provides.
To the extent that this information relates to a person's reputation, it does
not amount to an unlawful attack. This information sharing is necessary so
that TVET and the VRQA can carry out their important function of assuring
quality in the services provided by RTOs, and accordingly would not be
arbitrary.
Accordingly, any limitation to this right is reasonable.
Conclusion
I consider that the bill is compatible with the Charter of Human Rights and
Responsibilities because to the extent that clause 31 raises human rights
issues those limitations are reasonable and demonstrably justified in a free
and democratic society.
Hon. Bronwyn Pike, MP Minister for EducationMs PIKE (Minister for Education) -- I move: That this bill be now read a second time. The bill will make a number of amendments to the Education and Training Reform Act 2006 so as to implement government policy and to further improve its operation. The main purposes of the bill are: to create an executive class within the teaching service; to establish a more streamlined process for managing the unsatisfactory performance of school based employees; to broaden and clarify the type of orders concerning salary reimbursement that may be made by the Disciplinary Appeals Board following a successful appeal to that board against termination of employment; to authorise the Victorian Registration and Qualifications Authority to delegate functions to Second reading
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Technical and Vocational Education and Training Australia Limited in respect of registered training organisations that operate in more than one state or territory, and to ensure that the current ministers administering the Education and Training Reform Act 2006 can deal with all government education land relevant to their portfolios. The bill also corrects minor inaccuracies and technical errors to improve the operation of the act. As the provisions of the bill are grouped under these main purposes, the following further details are also given in that same order. The Victorian government believes that all Victorian children deserve the best possible start in life and that the greatest gift we can give our young people is a high quality education. With this in mind, the Blueprint for Education and Early Childhood Development, released on 2 September 2008, sets out the government's vision for education and early childhood development for the next five years. It outlines an integrated reform agenda designed to improve performance and promote excellence across Victoria's schools and early childhood services. The bill implements an important aspect of the blueprint by creating an executive class within the Victorian government teaching service, and will deliver on the Victorian government's commitment to legislate to allow executive contracts for school principals. The establishment of the executive class is consistent with the government's expressed commitment to develop, attract and reward the best people. It may be obvious, but it needs to be acknowledged, that the quality of the workforce is a major factor driving the quality of education in schools. High-quality education provision can only occur when the right people are attracted, recruited and supported to perform their roles as effectively as possible. This is particularly true of leaders in schools, with effective school leadership being critical to school improvement. Within this context, executive class contracts will be used to attract high-performing principals to areas where they are needed most. The executive class scheme in the bill is modelled partly on the provisions in the Public Administration Act 2004 dealing with 'executives' and the provisions in the Education and Training Reform Act 2006 dealing with the 'principal class'. Consistent with those other provisions, executives will be appointed on contracts which are to be fixed-term not exceeding five years. Importantly, a member of the principal class who becomes a member of the executive class is an ongoing employee within the teaching service, and has a right of return to another position in the teaching service at the end of the contract period, or may have the contract renewed for a further period of up to five years. The secretary of the department will determine the remuneration of a member of the executive class within a remuneration range set by ministerial order. Consequential amendments are also being made to the State Superannuation Act 1988. This act currently provides that the salary of principals for superannuation purposes is to be assessed at a higher level than other employees. This arrangement will be continued for principal class members who join the executive class. In all other cases, salary for superannuation purposes is to be modelled on an executive under the Public Administration Act 2004. The next main matter the bill deals with is to establish a more streamlined process for managing the unsatisfactory performance of government school-based employees, once the process has been completed at the local school level. The employees include teachers, principals and other school-based staff. Division 10 of part 2.4 of the Education and Training Reform Act 2006 is currently used for inquiries concerning both misconduct and unsatisfactory performance. School-based employees who engage in unsatisfactory performance are currently supported, monitored and issued with warnings about their performance by their school principal, in accordance with departmental guidelines. The act currently prescribes a procedure that includes the nomination of an 'investigator', and the conduct of an 'investigation' followed by a hearing and determination by the secretary. This is the same process for inquiries concerning misconduct. The current requirements can cause repetition and delay, given the comprehensive process already undertaken at the local school level. Also the term 'investigator' is inappropriate in the context of unsatisfactory performance, especially for employees who have not engaged in misconduct. The bill inserts a new division dealing specifically with unsatisfactory performance, and will provide a streamlined, fair and balanced process for managing
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unsatisfactory performance, once a report has been received by the employer. The new 'unsatisfactory performance' definition in division 9A will replace the term 'negligence, inefficiency and incompetence' in division 10. The new process will provide the secretary with a range of options upon receiving an unsatisfactory performance report. Prior to making a determination the secretary will give the employee an opportunity to make a submission about the matters in the report. The employee's submission must be made within 14 days (or any longer period permitted by the secretary), following which the secretary may then make a determination, taking into account the report and any submission from the employee. Actions may include issuing a reprimand, reducing the employee's classification or terminating the employee's employment. Consistent with other similar procedures, the bill provides the employee concerned with the right to lodge an appeal with the Disciplinary Appeals Board. Division 10 will continue to operate in the same way as before, except that an employee's unsatisfactory performance will now be dealt with under the new division. The reference to 'inefficiency' in division 10 will be removed and that division will deal mainly with misconduct. It is possible that some reports to the secretary might contain matters of a disciplinary nature, and the bill provides the secretary with the option of dealing with these other disciplinary matters under other current provisions of the act. The bill will make it clear that any conduct amounting to unsatisfactory performance and dealt with under the new division cannot subsequently be dealt with under division 10. However, the secretary may take action under division 10 for conduct that is related to the conduct dealt with under the new division, provided it is not expressly stated or referred to in the report provided to the secretary. A separate but related matter involves an amendment to the powers of the Disciplinary Appeals Board to order reimbursement of salary where it upholds an appeal to it against termination of employment. The current section 2.4.69 permits the board to order either reinstatement or some reimbursement of salary, but not both. The bill will amend the operation of section 2.4.69 to give the board a wider power where the employee is reinstated. The board may order that the employee is to be paid an amount that it considers appropriate in the circumstances to cover the employee's loss of salary, provided that the amount is not more than the employee would have earnt had the termination not taken place. The next matter dealt with by the bill involves changes to chapter 4 of the act. These changes will enable the Victorian Registration and Qualifications Authority to delegate some of its functions to Technical and Vocational Education and Training Australia Limited (or more commonly shortened to TVET Australia) in respect of registered training organisations that operate, or will operate, in more than one Australian state or territory, and that have their principal place of business in Victoria or conduct all or most of their operations in Victoria. This amendment will give effect to the decision of the Ministerial Council for Vocational and Technical Education to establish the National Audit and Regulation Authority to provide for the registration and regulation of multijurisdictional registered training organisations in order to reduce the audit burden on such organisations. Members will probably be aware that the council comprises commonwealth, state and territory ministers who are responsible for vocational education and training. The council decides national policy, and at its November 2006 meeting it agreed to establish a national registration, audit and approval function in TVET Australia Ltd, in order to reduce the audit burden on registered training organisations that operate in more than one state or territory. The main elements of the bill which implement the council's decision involve enabling the Victorian Registration and Qualifications Authority to delegate its relevant registration functions to TVET, and enabling registered training organisations to apply to the Victorian Registration and Qualifications Authority for approval to have their registration managed by TVET, and enabling for the Victorian Registration and Qualifications Authority to issue criteria which registered training organisations must satisfy in order to get that approval from the Victorian Registration and Qualifications Authority. The bill contains a note before clause 25 on the type of criteria that the Victorian Registration and Qualifications Authority is expected to publish. These criteria are expected to mirror those contained in a charter issued by TVET, which contain such criteria as requiring the registered training organisation to operate in more than one jurisdiction, or to show that it will be doing so within six months.
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The final main matter which the bill deals with is an amendment to the provisions in chapter 5 of the act, which vest all real property acquired for the purposes of the act in the minister. The reason why changes are needed is because the titles to government land in the education portfolios have been registered in various names since the 1862 act, called --An Act for the better maintenance and establishment of common schools In Victoria--. Some of these names cannot be traced to the current ministers administering the Education and Training Reform Act and do not reflect the current ministers' portfolio responsibilities. The amendments will ensure that the current ministers administering the act can deal with all titles to government education land, registered in various names since the 1862 act, relevant to their portfolios. The bill will also make a number of amendments to correct minor inaccuracies, statute law revisions and other changes to improve the operation of the act. The most significant of these is clause 35, which repeals section 5.4.12(3) of the act, so that work experience arrangements conducted interstate will, in the future, have to satisfy the safety and other requirements of section 5.4.3(2). Otherwise, the rest of these changes are not considered to change existing policies or procedures or remove existing rights. The Victorian government is committed to making a difference to the lives of young people in Victoria through investment in schools and early childhood services. Within this context, it is important that the Victorian education system is constantly improving. The amendments proposed in this bill will serve to further strengthen the already significant reforms to the education sector. I commend the bill to the house. Debate adjourned on motion of Mr DIXON (Nepean). Debate adjourned until Thursday, 23 October.