BILL: Coroners (Inquests and Privilege) Amendment Bill

Today Mark outlined the Greens' position on the Government's Coroners (Inquests and Privilege) Amendment Bill 2020.

Coroners (Inquests and Privilege) Amendment Bill

The Greens will support this bill. April this year will mark 30 years since the Muirhead Commission into Aboriginal Deaths in Custody handed down a damning final report containing 339 recommendations for reform, including that 'imprisonment should only occur as a last resort'.

Since that time, 437 First Nations people have died in custody. That is almost 15 lives taken a year, 15 families a year torn apart. First Nations people continue to die in custody because state and federal governments have sat on many of those 339 recommendations, and they have sat on their hands for 30 years. Just this month, the Victorian parliament finally moved to decriminalise public drunkenness, a Muirhead recommendation prompted by the death in custody of Yorta Yorta grandmother Tanya Day in 2017.

The content of this bill, in one incarnation or another, has been kicking around both chambers of this place for decades, and the inaction on both sides of politics was made stark by the recent findings in the case of Bell and Others v Deputy State Coroner and Others, arising out of our state's recent tragedy—a recent and much-publicised shame—that is, the death of Wayne Fella Morrison, who was restrained by no less than 14 guards on 26 September 2016. This was a death that our state's Ombudsman, Wayne Lines, described as demonstrating serious shortcomings in our Department for Correctional Services.

As other members have discussed, the Deputy Coroner was hindered in their investigation of the extent of these serious shortcomings by the refusal to answer questions on the basis of the privilege against self-incrimination by 19 witnesses to the inquest: 18 guards and a nurse. The privilege against self-incrimination in law is important, but it is not absolute. As the Law Society of South Australia pointed out in their open letter to the Attorney-General on 19 August last year, the privilege against self-incrimination is a basic and substantive human right.

While the Law Society opposes this bill, I respectfully disagree with their analysis. The right to life is also a basic and substantive human right. Article 7 of the United Nations Declaration on the Rights of Indigenous Peoples states:

Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.

Indigenous Peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence.

Article 38 of the declaration states:

States in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

It is my view and the view of many others that First Nations people cannot live in freedom, peace and security, assured that they will not be subjected to acts of violence while in custody, when our laws unreasonably allow witnesses to shield themselves behind the cloak of the privilege against self-incrimination.

In an interview with SBS, published online on 6 February, Ngarrindjeri artist Cedric Varcoe spoke of the ripple effect that a death in custody has on the First Nations community:

Some of us feel like we've been born into it—the intergenerational traumas that have been passed down to us. It gives you depression, gives you bad mental health issues and makes you feel like you're not wanted by the wider community.

Cedric's installation artwork honouring those 437 lives lost in the last three decades, Contested Space, was recently on display at the Signal Point Gallery in Goolwa.

The ALP's proposed amendments to section 23 of the Coroner's Act do not entirely knock the shield from the hands of witnesses, but they do put a dent in it, in the interests of increased transparency regarding the causes of a death in custody.

The curtailing of the privilege against self-incrimination is not revolutionary. As the Treasurer told the house on 12 November last year, every other jurisdiction has a comparable section, albeit with subtle differences. For example, you can look at section 61 of the Coroners Act 2009 from New South Wales, or section 57 of the Coroners Act 2008 in Victoria.

State and federal governments have also limited the privilege under workplace health and safety legislation. For example, you can look at section 172(1) of the Work Health and Safety Act 2011 of the commonwealth.

If protecting the lives and safety of our citizens while on the job is sufficient justification for amending the scope of the privilege, surely facilitating greater transparency during inquests into deaths in custody is as well. Qualifying the privilege is not new. Less than 10 years ago, this parliament qualified the privilege against self-incrimination through the Independent Commissioner Against Corruption Act. I refer members to schedule 2 of that act.

Ian Freckleton QC has contributed to this debate in an editorial entitled 'The privilege against self-incrimination in coroners' inquests', which he first wrote back in 2015. He stated the privilege against self-incrimination is:

… often regarded as providing a crucial protection for individuals against oppression by the state or against an actual or potential abuse of power…

However the purpose of these amendments to the Coroners Act now is to ensure accountability regarding another potential source of oppression by the state: deaths in custody, which may also involve actual abuses of power.

Fifty years earlier, the famed jurist Justice Victor Windeyer stated in the case of Rees v Kratzmann in the High Court of Australia that the origins of this privilege arose, in small part, by 'a persistent memory in the common law of hatred of the Star Chamber and its works'.

This bill, however, strikes an appropriate balance. It is an amendment that does not ignore the memory of the arbitrary abuses of power in the Palace of Westminster centuries ago, but simultaneously does not turn away from the immediate injustices that periodically occur in our custodial systems.

The Coroner will be able to exercise their discretion when determining whether to compel the giving of evidence. Coroners will need to ask themselves whether such compulsion is in the interests of justice. I believe that that level of judicial discretion is appropriate, and I trust that it will be fairly exercised.

When we get to the committee stage of the debate, we will explore in more detail whether or not the proposed amendments further improve this bill. For now, the Greens are happy to support the second reading.