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Coroners Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are--
· to require the reporting of certain deaths; and
· to provide for coroners to investigate deaths and fires in
specified circumstances; and
· to contribute to reducing the number of preventable
deaths and fires through the findings of the investigation
of deaths and fires, and the making of
recommendations, by coroners; and
· to establish the Coroners Court of Victoria as a
specialist inquisitorial court; and
· to establish the Coronial Council of Victoria; and
· to amend the Coroners Act 1985 to repeal the
provisions relating to coroners and to rename that Act as
the Victorian Institute of Forensic Medicine Act
1985; and
· to make consequential amendments to other Acts.
Clause 2 contains the commencement provision stating that the Bill will
come into operation on 1 November 2009.
561211 1 BILL LA INTRODUCTION 9/10/2008
Clause 3 provides a number of definitions, including--
autopsy which means the dissection of a body of a deceased
person, including the removal of tissue from a body and any
other procedure prescribed to be an autopsy. The reference to
dissection would include the testing of any tissue or material that
is removed as part of the autopsy.
Since the definition provides that an autopsy does not include a
preliminary examination or an identification procedure, the
following would be examples of the removal of tissue which
would not be an autopsy--
· the taking of bodily fluid samples from the body;
· the taking of samples from the surface of the body;
· the taking of tissue as part of an identification
procedure.
The distinction between an autopsy and a preliminary
examination or an identification procedure is relevant because
there are notice and appeal provisions in the Bill that apply to an
autopsy, which do not apply to a preliminary examination or an
identification procedure;
body which means a corpse of a human being or part or parts of
the corpse or remains of a human being, but does not include
tissue removed from the corpse of a human being. This means
that if there was an accident which resulted in a body being
broken into pieces those pieces would be part of the "body".
Further, if remains of a human being are in a grave, those
remains would be the "body" and could be exhumed and subject
to an "autopsy". However, if tissue samples were taken from the
body or organs were removed for transplantation, that tissue
would not be a "body" within the meaning of the Bill;
coroner means the State Coroner, the Deputy State Coroner,
a magistrate assigned to be a coroner for the Coroners Court;
and a person appointed as an acting coroner. The transitional
provisions in Schedule 1 provide that a person who was a coroner
under the Coroners Act 1985 immediately before the Bill comes
into operation is a coroner under the Bill on the day that the Bill
comes into operation;
Coroners Court means the Coroners Court of Victoria;
Council means the Coronial Council of Victoria;
death includes suspected death;
2
identification direction means a direction given by a coroner
under clause 24 for the purpose of identifying the deceased
person;
identification procedure means any procedure performed
pursuant to an identification direction;
inquest means a public inquiry that is held by the Coroners Court
in respect of a death or a fire;
interested party means a person granted leave to appear at an
inquest;
medical examination means a preliminary examination,
an identification procedure or an autopsy;
medical procedure means a procedure performed by or under the
general supervision of a registered medical practitioner on a
person and includes imaging, internal examination and surgical
procedures. This would also include injections performed by or
under the general supervision of a registered medical practitioner.
The definition is relevant to the definition of reportable death in
clause 4;
parent in relation to a child is defined with an inclusive definition
to provide that it has an expanded meaning for the purposes of
the Bill. The meaning of a parent in relation to an adult child
would be the ordinary legal meaning of parent. The term parent
is used in relation to the definitions of senior next of kin and
reviewable death;
person placed in custody or care--this term covers a range of
situations, including where the person is under the control, care
or custody of the Secretary to the Department of Human
Services, is in the legal custody of the Secretary to the
Department of Justice, is in the custody of a police officer or is a
person whom a police officer or prison officer is attempting to
take into custody. The definition of person placed in custody or
care is relevant to whether a death is reportable, who is required
to report the death, whether an inquest needs to be held into the
death and whether the coroner must report on the circumstances
of the death;
preliminary examination means a variety of procedures
including a visual examination of the body, taking bodily fluid
samples or samples from the surface of the skin and
fingerprinting. The taking of bodily fluid samples could involve
making an incision into the body, such as cutting skin and flesh
to access a vein or artery. The definition also includes any other
procedure that is not a dissection, the removal of tissue or
prescribed to be an autopsy. The interaction of preliminary
3
examination, identification procedure and autopsy mean that,
collectively, they cover all procedures that would be performed
on the body of a deceased person in order to enable a coroner to
perform his or her functions;
prescribed is defined to mean prescribed by the regulations,
unless otherwise provided. If the Bill provides that a form or
matter is to be prescribed, then, unless otherwise provided,
the form or matter needs to be prescribed by the regulations.
An example of where the Bill "otherwise provides" is where the
Bill refers to a matter being "prescribed by the regulations or the
rules";
registrar means the principal registrar, deputy registrars and
registrars of the Coroners Court. Pursuant to clause 97(2),
a person who holds the office of registrar or deputy registrar of
the Magistrates' Court also holds the office of registrar or deputy
registrar (as the case requires) of the Coroners Court;
senior next of kin is defined according to a hierarchy.
The definition relates to provisions regarding receiving material
from the Coroners Court, autopsy, exhumation and appeals.
Clause 3 also defines child, domestic partner, Country Fire
Authority, Institute, interstate coroner, Metropolitan Fire and
Emergency Services Board, pathologist, sibling, spouse,
the rules and tissue.
Clause 3(4) provides that a reference to a function includes a
reference to a power and a duty and that a reference to the
exercise of a function includes, where the function is a duty, a
reference to the performance of the duty.
Clause 4 provides a definition for reportable death. A death is a
reportable death if the death was a death specified in clause 4(2)
and one of the following applies: the body is in Victoria, or the
death occurred in Victoria, or the cause of death occurred in
Victoria or the person ordinarily resided in Victoria.
Clause 4(2)(b) refers to deaths that occur during or following a
medical procedure and provides that the determination regarding
whether the death is unexpected is determined by assessing
whether a registered medical practitioner, immediately before the
procedure was undertaken, would have reasonably expected the
death.
4
If a person died of cancer and, immediately before the death,
received injections of morphine at a dosage that was required in
order to alleviate the person's pain and hastened the onset of
death, there may be a causal relationship between the death and
the legitimate use of the morphine. Further, the use of the
injection would be a medical procedure for the purposes of the
Bill. However, such a death would be reasonably expected and
would therefore not be a reportable death under clause 4(2)(b).
If morphine was prescribed at levels that were more than was
required to alleviate the person's pain and was used to hasten the
onset of death, the death would not be reportable under
clause 4(2)(b) (because the death would be expected) but would
be a reportable death under clause 4(2)(a).
If the death followed a health procedure, which was not a
medical procedure, the death would be a reportable death if it
were captured by one of the other paragraphs of clause 4(2).
For instance, if a death followed a chiropractic procedure or a
procedure performed by a nurse practitioner (which was not
under the general supervision of a registered medical
practitioner) it would be a reportable death if the death were
unexpected or resulted directly or indirectly from an accident or
injury;
Clause 5 defines reviewable death as the death of a child (the deceased
child) if the deceased child is the second or subsequent child of
the deceased child's parent to die and one of the following
applies: the body is in Victoria, or the death occurred in Victoria,
or the cause of death occurred in Victoria or the child ordinarily
resided in Victoria.
Subclause (2) clarifies that if the deceased child was born at a
hospital and had always been an in-patient of that hospital, the
death will not be regarded as reviewable, so long as it is not a
reportable death.
PART 2--OBJECTIVES
Clause 6 introduces the new Part 2 and sets out the role of the objectives of
the Bill. The objectives are intended to give guidance in the
administration and interpretation of the Bill.
Clause 7 outlines the intention of Parliament that the Coroners Court
should liaise with other investigative authorities, official bodies
and statutory officers to avoid any unnecessary duplication of
inquiries and investigations and to expedite investigations.
5
Clause 8 lists six factors that a person must consider when exercising a
function, power or duty under the Bill. These factors
acknowledge that the death of a family member, friend or
community member can be very difficult and may require the
referral of distressed persons to professional support or other
support. The factors also acknowledge that unnecessarily lengthy
or protracted coronial investigations may exacerbate distress,
that different cultures have different beliefs and practices
surrounding death, that family members should be kept informed
of the particulars and progress of a death investigation and the
desirability of promoting public health and safety and the
administration of justice. The factors also refer to 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.
A person exercising powers, duties and functions under the Bill
would also have regard to other relevant matters, including the
objectives of the Bill.
Clause 9 provides that the coronial system should operate in a fair and
efficient manner.
PART 3--REPORTING OF DEATHS
Clause 10 sets out when a registered medical practitioner is required to
report a reportable death.
Clause 11 provides that the death of a person held in custody or care must
be reported without delay by the responsible person.
Clause 12 sets out the general obligation on a person to report a reportable
death.
Clause 13 sets out when a registered medical practitioner or other person is
required to report a reviewable death.
PART 4--INVESTIGATION OF DEATHS AND FIRES
Division 1--Investigation of deaths
Clause 14 provides when a coroner may investigate a death that is or may
be a reportable death.
Clause 15 provides when a coroner must investigate a death that appears to
the coroner to be a reportable death.
6
Clause 16 relates to when a coroner determines that a death, which was
reported to the coroner, is not a reportable death.
An example of when a coroner may determine that a death that
was reported to the coroner is not a reportable death is when
notice under section 37(1) of the Births Deaths and Marriages
Registration Act 1996 is provided after the death is reported.
This can occur when the deceased's doctor was away when the
person died and, upon the doctor's return, the doctor provides the
notice.
Clause 17 provides for certain deaths that are reported, but do not require
investigation.
The effect of clause 17(1)(a) and (c) mean that clause 17 would
not apply where the deaths--
· appear to have been unnatural or violent or to have
resulted, directly or indirectly from an accident; or
· to be covered by clauses 4(2)(b) to (j) in the definition
of reportable death.
Clause 18 provides for the State Coroner to refer reviewable deaths to the
Institute and for the principal registrar to provide information to
the Institute.
Clause 19 provides that the State Coroner may investigate a death that is or
appears to be a reviewable death and must advise the Institute if
he or she decides not to refer a reviewable death to the Institute.
Clause 20 relates to when the State Coroner determines that a death, which
was reported to the State Coroner as a reviewable death is not a
reviewable death.
Clause 21 provides that the principal registrar must provide certain
people with information regarding the coronial process.
This information would relate to the coronial process and not the
particular investigation.
Clause 22 provides for when a body is under the control of the coroner or
State Coroner.
Clause 23 allows a coroner to provide a body to a medical investigator to
enable a preliminary examination to be performed. Provision of
the body is authority to conduct the examination and there is no
need for the coroner to make a direction that the preliminary
examination be conducted.
7
Clause 24 provides for an identification procedure to be conducted for the
purposes of identifying the deceased. A coroner may direct a
medical investigator to perform any procedure on a body
(including the removal of tissue) for the purpose of identifying
the deceased person. This direction does not relate to anything
which is a preliminary examination, since such examinations are
authorised pursuant to clause 23. An example of a procedure that
could be the subject of an identification direction is the removal
of bone from the head of a femur in order to collect DNA for
identification purposes.
Clause 25 provides for the coroner directing a medical investigator to
perform an autopsy.
Subclause (4) notes that nothing in the Bill prevents a
preliminary examination or an identification procedure being
conducted concurrently with an autopsy.
Clause 26 relates to the ability of the senior next of kin to object to an
autopsy.
Once a senior next of kin has received notice of the direction to
have an autopsy, the senior next of kin has 48 hours in which to
ask a coroner to reconsider the direction. If the coroner still
believes that an autopsy direction is appropriate, the coroner must
provide notice to the senior next of kin and the senior next of kin
has a further 48 hours to determine whether to appeal against the
direction.
However, if it is appropriate, the coroner could direct that an
autopsy be performed immediately and the autopsy could occur
before a senior next of kin is even located. This could occur in
situations where it is important to perform the autopsy
immediately, such as with a homicide. Further, the coroner or
registrar could discuss the possibility of an autopsy with the
senior next of kin and receive advice that, if the coroner decides
that there should be an autopsy, the senior next of kin would want
the autopsy performed as quickly as possible. This could reflect
that the senior next of kin, and the family of the deceased, is keen
to ensure that funeral arrangements are not unduly delayed and
that the senior next of kin believes that the coroner understands
the views of the senior next of kin in relation to an autopsy and
will take those views into account. In this situation, the coroner
may then further liaise with the medical investigator and
determine that an autopsy is necessary and appropriate and that it
is appropriate for the autopsy direction to take effect immediately
after it is made.
8
Clause 27 provides that any person may request that an autopsy be
performed if the coroner has control of the body. If the coroner
refuses the request, he or she must give written notice to the
person who made the request.
Clause 28 clarifies that certain people may assist with the removal of tissue
during a medical examination.
Subclause (2) provides that the coroner may direct a medical
investigator to preserve certain materials that bear on the cause or
circumstances of the death, or the identity of the deceased.
Clause 29 provides that the principal registrar must provide any information
that the coroner considers necessary or helpful to the medical
investigator to perform the medical examination.
Division 2--Investigation of fires
Clause 30 provides for the Country Fire Authority or Metropolitan Fire and
Emergency Services Board to request a coroner to investigate a
fire. Subclause (2) provides that a coroner must investigate the
fire unless the coroner decides that the investigation is not in the
public interest. If the coroner decides not to investigate, he or
she must give written reasons to the Authority or Board.
Clause 31 provides for any person to request that a coroner investigate a
fire. If the coroner decides not to investigate, he or she must give
written reasons to that person.
Division 3--Assistance to coroner in investigation
Clause 32 provides that the person who reported a reportable death or a
reviewable death must provide the coroner with any assistance or
information, which is requested by the coroner.
Clause 33 provides that the registered medical practitioner who was
responsible for a person's medical care immediately before that
person's death, or who was present at or after the person's death,
must provide the coroner with any assistance or information,
which is requested by the coroner.
Clause 34 provides that a person who requests a coroner to investigate a fire
must give the coroner any information that may assist the
investigation.
Clause 35 provides that the Country Fire Authority or Metropolitan Fire and
Emergency Services Board must give the coroner any
information that may assist the coroner.
9
Clause 36 provides that a police officer who has information that may be
relevant to an investigation must provide that information to the
coroner.
Division 4--Powers relating to investigation
Clause 37 provides that the coroner or the Chief Commissioner of Police
may take reasonable steps to restrict access to the place where the
death occurred, or reasonably connected to the place where the
death occurred.
Subclause (3) allows the Chief Commissioner to restrict access to
the place where an incident has occurred if the Commissioner
reasonably expects a person to die as a result of that incident.
This includes a place reasonably connected to the place where an
incident has occurred. The word death (including "die") is
defined in clause 37(1). The reference to "death" would include a
suspected death.
Subclause (4) allows the coroner or the Commissioner to place a
notice in the prescribed form stating that access has been
restricted to a place at that place or as near as possible to that
place.
Subclause (5) directs that a person must not enter or interfere
with the restricted area without lawful excuse.
A penalty of 60 units or 6 months imprisonment applies if this is
contravened.
Clause 38 provides that the coroner or the Chief Commissioner of Police
may take reasonable steps to restrict access to the place where a
fire occurred, or a place reasonably connected to the place where
a fire occurred.
Subclause (2) allows the coroner or the Commissioner to place a
notice in the prescribed form stating that access has been
restricted to a place. The notice should be at that place or as near
as possible.
Subclause (3) directs that a person must not enter or interfere
with the restricted area without lawful excuse.
A penalty of 60 units or 6 months imprisonment applies if this is
contravened.
10
Clause 39 provides a coroner with the power to authorise a member of
the police force to enter, search and inspect premises
(using reasonable force if required) and take possession of any
documents or things which may be relevant to a coronial
investigation. The power to take samples without consent would
not include the power to take a sample from a living person.
A coroner may also exercise these powers (other than the power
to use reasonable force). The coroner does not receive written
authorisation to exercise these powers, because he or she is
authorised by the Bill.
Subclause (3) permits a police officer or coroner to use any
assistance that is required, and subclause (4) requires that an
authorisation must specify the hours of the day and the period of
time during which the powers may be exercised.
Subclause (5) requires a police officer to give a copy of the
authorisation to a person who appears to be the occupier of the
premises and over 16 years of age.
Clause 40 allows a coroner or police officer exercising a power under
clause 39 to direct a person at the premises to produce a
document or operate equipment to access information. Unless a
person has a lawful excuse, it is an offence to fail to comply.
The penalty for this offence is 60 penalty units.
Clause 41 allows a coroner exercising a power under clause 39 to undertake
a number of other tasks to assist the investigation, including
taking photos, making an audio or audiovisual recording,
bringing any equipment to the premises or conducting any tests.
Clause 42 provides for a coroner to request that a specific document or
documents, or a prepared statement addressing matters specified
by the coroner be given to the coroner within the reasonable
specified time.
Subclause (3) provides that unless a person has a lawful excuse,
it is an offence not to comply. The penalty for this offence is
20 penalty units.
Division 5--Exhumation
Clause 43 provides for a person to apply to the State Coroner for an
authorisation for an exhumation. If the State Coroner refuses,
the applicant must be advised without delay.
Clause 44 provides for the State Coroner to authorise an exhumation.
11
Clause 45 provides for the process of giving notice regarding a proposed
exhumation authorisation. The clause enables an exhumation
authorisation to take effect immediately if the exhumation is
urgent or giving notice is not possible.
Clause 46 provides for the process of giving notice regarding an
exhumation authorisation. The clause enables an exhumation
authorisation to take effect immediately if so determined by the
State Coroner. If notice is required to be given to people under
clause 45, notice will need to be given under clause 46.
However, if notice is not required under clause 45, it will not be
required under clause 46.
Division 6--General
Clause 47 provides for the release of a body.
Subclause (2) provides that the coroner must by order specify a
person to whom the body is to be released, and the order may
contain any other necessary terms and conditions.
Clause 48 provides that a person may apply to the Court requesting that the
body be released to them.
Subclauses (2) and (3) establish the principles that will guide the
coroner in determining who has the better claim for having the
body released to them.
Clause 49 provides that the principal registrar must notify the following
parties and provide the following information:
· The Director of Public Prosecutions if the coroner
believes that an indictable offence may have been
committed in connection with the death or fire; and
· The Registrar of Births, Deaths and Marriages with the
prescribed particulars of death; and
· The Consultative council on Obstetric and Paediatric
Mortality and Morbidity for the particulars of any
maternal death and the death of a child reported to the
coroner; and
· A prescribed body. By way of example, the regulations
could prescribe that the information is provided to a
consultative council established under the Public
Health and Wellbeing Act 2008 or to require the
information to be provided for inclusion on the National
Coronial Information System.
12
Clause 50 provides that the privilege against self-incrimination applies in
relation to certain provisions under the Bill. The only manner
that a person may be required to provide oral evidence that is
contrary to the privilege against self-incrimination is pursuant to
clause 57.
Clause 51 provides that the State Coroner may provide assistance to another
coroner (or a person who performs a role that substantially
corresponds to the role of a coroner) of another country, State or
Territory.
PART 5--INQUESTS INTO DEATHS AND FIRES
Division 1--Types of inquests
Clause 52 provides that a coroner may hold an inquest into any death the
coroner is investigating. The clause also addresses when a
coroner must conduct an inquest and the process regarding when
a person requests a coroner to conduct an inquest.
Clause 53 provides that a coroner may hold an inquest into any fire the
coroner is investigating and the process for a person to request a
coroner to hold an inquest.
Clause 54 provides for a coroner to hold an inquest into multiple deaths and
fires.
Division 2--Powers of coroners at inquests
Clause 55 provides for a number of powers a coroner may exercise if the
coroner believes it is necessary for the purposes of an inquest or
to determine whether or not to hold an inquest. These include the
power to summon a person to attend as a witness or produce
documents or other materials.
Clause 56 provides that a coroner may give a person with a sufficient
interest in the inquest leave to appear as an interested party.
Clause 57 provides that a coroner may require a person to give evidence
despite that evidence being incriminating. The clause also
provides for the coroner to provide a certificate in respect of the
evidence. The provision is based on (and consistent with)
section 128 of the Evidence Act 2008.
Clause 58 clarifies that this Act does not affect legal professional privilege.
13
Clause 59 provides that a coroner may issue a warrant to arrest a person in
certain situations, such as failure to attend before the coroner or
produce documents.
The clause provides for the endorsement of the warrant and
outlines the process once the warrant is executed.
Clause 60 provides that a coroner may be assisted at an inquest by a police
officer, an Australian lawyer, the Director of Public Prosecutions
or another person appointed by the coroner.
Division 3--Process at inquest
Clause 61 provides that a coroner must publish the date, time, place and
subject of an inquest in accordance with the rules.
Clause 62 provides that a coroner holding an inquest is not bound by the
rules of evidence.
Clause 63 provides that oral evidence must be recorded in accordance with
the Evidence Act 1958. Except as provided in section 55AB of
the Evidence Act 1958, a record of evidence provided to the
Coroners Court is not evidence in any court of any fact asserted
in the record.
Clause 64 affirms that the coroner is in control of the investigation and the
inquest and determines the witnesses to be called and the relevant
issues.
Clause 65 provides that inquests are to be conducted with as little formality
and technicality as the interests of justice will permit, and that
they should be comprehensible to families and interested parties.
Clause 66 provides for the rights of interested parties. An interested party
may put forward the names of any relevant witnesses for the
coroner's consideration.
Subclause (2) provides that the Attorney-General may appear or
be represented at an inquest, examine or cross-examine witnesses
and make submissions.
Subclause (3) provides for an interested party to be represented,
and to examine or cross-examine witnesses and make
submissions.
14
PART 6--FINDINGS, RECOMMENDATIONS AND
REFERRALS
Clause 67 provides for the findings that must be made (if possible) by the
coroner investigating a death.
Clause 68 provides that a coroner investigating a fire must find (if possible)
the cause and origin of the fire and the circumstances in which it
occurred.
Clause 69 provides that, subject to a limited exception, the coroner must not
include in a finding or comment any statement that a person is or
may be guilty of an offence.
Clause 70 relates to the effect of certain apologies on findings that are made
by a coroner.
Clause 71 provides that a coroner is not required to make a finding if a
coroner has decided to not hold or discontinue an inquest because
a person has been charged with an indictable offence in relation
to the death being investigated.
Clause 72 provides that a coroner may report to the Attorney-General on a
death or fire investigated, and may make recommendations to
any Minister, public authority or entity on any matter connected
with a death or fire that was investigated.
Clause 73 provides that, unless otherwise ordered by the coroner, coronial
findings, comments and recommendations must be published on
the Internet in accordance with the rules.
Subclause (2) provides for a coroner to restrict the reporting of
any documents, material or evidence produced as part of an
investigation or inquest if the coroner reasonably believes it
would prejudice a fair trial or be contrary to the public interest.
This could, for example, be used to restrict any publications of
reports of medical examinations. This power could be exercised
at any time during an investigation, during an inquest or after an
investigation or inquest. The maximum penalty is 60 penalty
units.
Clause 74 provides that, subject to subclause (2), every person appearing
before the Court who is represented by an Australian lawyer is to
bear their own costs in relation to the inquest.
15
Subclause (2) provides for the coroner to require a person to pay
certain expenses that were incurred by another person if the
relevant requirements are met. One of the requirements is that
the person who is required to pay the expenses acted
unreasonably during an inquest or investigation.
Clause 75 provides for witnesses and Australian lawyers to have the same
immunity at an inquest as they would before the Supreme Court.
Clause 76 permits the Coroners Court to correct slips and errors in findings,
recommendations and comments.
Clause 77 provides for a person to apply to the Coroners Court for an order
that some or all of the findings of a coroner be set aside and for
the investigation of a death or fire to be re-opened.
The Court may only re-open the investigation if it is satisfied that
there are new facts and circumstances and it is appropriate to
re-open the investigation. The reference to new facts and
circumstances encompasses facts and circumstances that are new
to the investigation. These facts may have been known to people
during the investigation, but they were not known to the coroner
conducting the investigation. In deciding whether to re-open an
investigation, the Court would have regard to all relevant factors,
including the need to promote the finality of decisions in the
Coroners Court and the objective under clause 9 that the coronial
system should operate in a fair and efficient manner. The Court
would not want to exercise its power to re-open an investigation
in a manner that encouraged a person to negligently or
intentionally withhold information and then subsequently seek a
re-opening of the investigation by claiming that there were facts
and circumstances that were "new" to the investigation.
PART 7--APPEALS TO SUPREME COURT
Part 7 provides for appeals to the Trial Division of the Supreme Court on a
question of law in relation to specified decisions. In addition to these
appeals, people would also have the right to make an application to the
Supreme Court seeking judicial review of decisions made under the Bill.
Clause 78 provides for appeals in relation to a decision of a coroner that a
death is not a reportable death.
Clause 79 provides for appeals in relation to autopsy.
Clause 80 provides for appeals in relation to the decision of a coroner not to
investigate a fire.
Clause 81 provides for an appeal in relation to an exhumation authorisation.
16
Clause 82 provides for an appeal in relation to a decision of a coroner not to
hold an inquest.
Clause 83 provides for an appeal with regard to the findings of a coroner.
Clause 84 provides for an appeal against the refusal by the coroner to
re-open an investigation.
Clause 85 provides for an appeal against an order to release the body of the
deceased.
Clause 86 provides for the Supreme Court to grant an extension of time in
relation to specified appeals that are out of time.
Clause 87 provides for the appeal to the Supreme Court to be on a question
of law, the powers of the Supreme Court and the application of
the Supreme Court rules.
Clause 88 provides that where an appeal under Part 7 is regarding autopsies,
the release of a body or an exhumation authorisation is upheld,
the Supreme Court must not remit the matter to the Coroners
Court, and must make a number of orders in accordance with the
clause.
PART 8--THE CORONERS COURT
Division 1--Establishment of Coroners Court of Victoria
Clause 89 provides for the establishment of the Coroners Court as an
inquisitorial court consisting of the coroners and registrars. It is
an inquisitorial court because it is conducting the investigation
into the death or fire and is responsible for the investigation and
findings. The investigation and inquest are neither civil nor
criminal proceedings, as those terms are understood in Victoria.
Clause 90 provides for where and when the Coroners Court is to be held.
Clause 91 provides for the office of the State Coroner, who must be a judge
of the County Court.
Clause 92 provides for the office of the Deputy State Coroner, who must be
a magistrate. Subclause (3) provides that the Deputy State
Coroner must act as State Coroner in the absence of the State
Coroner.
Clause 93 provides for the State Coroner and Chief Magistrate to jointly
assign a magistrate or acting magistrate to be a coroner.
Clause 94 provides for the appointment of acting coroners.
17
Clause 95 provides for a coroners' oath of office.
Clause 96 provides for the State Coroner to assign duties to coroners, and
for coroners to carry out those duties.
Clause 97 provides for the employment of a chief executive officer,
a principal registrar, registrars and deputy registrars.
Subclause (2) provides that registrars and deputy registrars of the
Magistrates' Court also hold the office of registrar or deputy
registrar of the Coroners Court.
Clause 98 provides for the functions of a registrar.
Clause 99 provides for the State Coroner to delegate certain functions to a
specified registrar or class of registrar. Subclause (2) sets out
those functions that are not delegable, including ordering an
exhumation or an autopsy.
Clause 100 provides for the State Coroner to delegate any of his or her
functions to a coroner or the Deputy State Coroner other than
certain specified functions.
Clause 101 provides for a coroner and registrar to have the same protection
and immunity as a Judge of the Supreme Court.
Clause 102 provides for the State Coroner to submit an annual report to the
Attorney-General by 31 October and for the Attorney-General to
lay the report before Parliament within 7 sitting days of receipt.
Division 2--Contempt of Court
Clause 103 provides for contempt of court in a variety of situations including
where a person wilfully fails to comply with a summons or order
of the Court. The clause establishes the process for dealing with
contempt and notes that the rules of evidence apply in relation to
the exercise of powers under the clause.
Clause 104 provides for a person convicted of contempt to appeal to the
Court of Appeal in accordance with Part VI of the Crimes Act
1958 and the process for such appeals.
Division 3--Rules of Court and practice notes
Clause 105 provides that the State Coroner, together with two or more
coroners, may jointly make rules of the Coroners Court with
respect to a number of matters including the prescription of Court
forms and any matter relating to the practice and procedure of the
Court.
18
Clause 106 provides that the rules are subject to disallowance by a House of
the Parliament.
Clause 107 provides for the State Coroner to issue practice directions,
statements or notes.
Division 4--Miscellaneous
Clause 108 provides for the State Coroner to be responsible for the
professional development and training of coroners and registrars
and provides for the State Coroner to direct coroners or registrars
in relation to such training.
PART 9--CORONIAL COUNCIL OF VICTORIA
Clause 109 provides for the establishment of the Coronial Council of
Victoria.
Clause 110 provides for the functions of the Coronial Council.
Clause 111 provides that the members of the Council consist of the State
Coroner, the Director of the Institute and the Chief
Commissioner of Police plus 5 to 7 other members appointed by
the Governor in Council on the recommendation of the Attorney-
General.
The clause provides for the terms of office of any person
appointed by the Governor in Council and the appointment of a
Chairperson.
Clause 112 provides who presides at a meeting and provides that the person
presiding must ensure that decisions and recommendations are
recorded in writing. Subject to this clause, the Council may
otherwise regulate its own procedure.
Clause 113 provides for the Council to submit an annual report to the
Attorney-General by 31 October. The Attorney-General must lay
the report before Parliament within 7 sitting days of receipt.
PART 10--GENERAL
Clause 114 provides for the Court making orders regarding the custody, care,
control, return or disposition of things or samples seized, taken or
received by a police officer or the Coroners Court under the Bill.
19
Clause 115 provides that, unless otherwise ordered by the coroner, the senior
next of kin is entitled to reports that the coroner received from
the medical investigator in relation to a medical examination.
The clause also provides that, unless otherwise ordered by the
coroner, an interested party is entitled to a copy of the inquest
brief which relates to the inquest.
The clause also provides for the release of documents and the
imposition of conditions on the release. In exercising his or her
discretion under clause 115, a coroner would have regard to
(amongst other matters) Part 2 of the Bill, including 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.
A document relating to the investigation of a death or a fire that
is held by the Coroners Court must not be released by the
Coroners Court except as permitted under the Bill or any other
law.
Clause 116 provides for registers that must be kept by the principal registrar.
Clause 117 provides for the making of regulations.
Clause 118 provides that the principal registrar and any registrar nominated
by the principal registrar to waive, reduce or refund prescribed
fees.
Clause 119 provides that Schedule 1 (which contains transitional and saving
provisions) has effect.
PART 11--AMENDMENT OF CORONERS ACT 1985 AND
CONSEQUENTIAL AMENDMENTS
Division 1--Amendment of Coroners Act 1985
Clause 120 provides for the Coroners Act 1985 being renamed the
Victorian Institute of Forensic Medicine Act 1985. This name
reflects that the 1985 Act will only relate to the Institute.
Clause 121 deletes purposes that are no longer relevant to the Victorian
Institute of Forensic Medicine Act 1985.
20
Clause 122 provides for the insertion and substituting of definitions in the
Victorian Institute of Forensic Medicine Act 1985 so that the
defined terms are consistent with the definitions in the Coroners
Bill 2008.
The clause also repeals definitions that are no longer used in the
Victorian Institute of Forensic Medicine Act 1985 or are no
longer necessary.
Clause 123 provides for the repeal of provisions that are not relevant to the
Institute or that are being replaced by the Bill.
Clause 124 inserts an objective into section 64 of the Victorian Institute of
Forensic Medicine Act 1985 that reflects the prevention focus of
the coronial system.
Clause 125 provides that the State Coroner no longer has the general power
to direct the Institute. Subclause (2) clarifies that the Institute's
function in relation to reviewable deaths does not require the
Institute to be involved with families for an indeterminate period.
Clause 126 clarifies that staff may be employed under Part 3 of the Public
Administration Act 2004 to assist the Institute in the
performance of its functions.
Clause 127 substitutes a new section 73 into the Victorian Institute of
Forensic Medicine Act 1985 regarding the duties of the Director
of the Institute in relation to medical examinations performed in
accordance with the Bill. If there was an examination that
involved an autopsy and a preliminary examination, the Director
could arrange for one report to be prepared which addressed the
preliminary examination and the autopsy.
Clause 128 provides for the repeal of Division 1 on 1 November 2010.
The repeal of Division 1 does not affect the ongoing operation of
the amendments made by Division 1 (see section 15(1) of the
Interpretation of Legislation Act 1984).
Division 2--Consequential amendments
Clause 129 provides for the consequential amendments in Schedule 2.
Clause 130 provides for the repeal of Division 2 and Schedule 2 on
1 November 2010. The repeal of Division 2 and Schedule 2 does
not affect the ongoing operation of the amendments made by that
Division or Schedule (see section 15(1) of the Interpretation of
Legislation Act 1984).
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SCHEDULE 1--SAVING AND TRANSITIONAL PROVISIONS
Clause 1 defines terms for the purpose of the Schedule 1.
Clause 2 clarifies that the schedule does not affect or take away from the
Interpretation of Legislation Act 1984.
Clause 3 clarifies how references in other Acts and documents to the
Coroners Act 1985 should be read after the Bill comes into
operation.
Clause 4 provides which provisions of the Coroners Act 1985 are deemed
to be re-enacted with modifications by specific provisions in the
Bill.
Clause 5 clarifies when a medical investigator may perform a preliminary
examination when the body was provided to the medical
investigator prior to the Bill coming into operation.
Clause 6 clarifies that certain directions by the Attorney-General and State
Coroner do not continue to have effect under the Bill.
Clause 7 provides for an inquest that commenced before the
commencement of the Bill and that was not completed before
that commencement. The Coroners Act 1985, as in force on
31 October 2009, continues to apply to such an inquest on and
from the commencement day until that inquest is complete.
However the findings made at such an inquest are deemed to be
findings made under clauses 67 or 68 (as appropriate) of the Bill.
Clause 8 provides for a hearing of an application to the Supreme Court that
was begun before the commencement of the Bill and that was not
completed before that commencement. Sections 18, 28, 29, 30,
35, 59 and 59B of the Coroners Act 1985, as in force on 31
October 2009, continues to apply to such an application on and
from the commencement day until the application is complete.
However, the determination of the application by the Supreme
Court is deemed to be a determination of the Supreme Court
under clause 87 of the Bill.
Accordingly, any medical examination, investigation or inquest
that occurs after the application to the Supreme Court has been
determined will occur under the Bill.
22
Clause 9 provides that documents held by the State Coroner's Office, or on
a coroner's file or record (within the meaning of section 51 of the
Coroners Act 1985 as in force on 31 October 2009) or any other
documents held by a coroner immediately before the
commencement of the Bill are, on and from the commencement
of the Bill, deemed to be documents held by the Coroners Court.
This clause does not apply to an inquest being heard under
clause 7, or an application being heard under clause 8, until that
inquest is completed or that application is determined.
Clause 10 provides that, despite clauses 7 and 8, documents on a coroner's
file or record (within the meaning of section 51 of the Coroners
Act 1985 as in force on 31 October 2009) may only be released
in accordance with the Bill or under a law other than section 51
of the Coroners Act 1985 as in force on 31 October 2009.
Clause 11 provides for certificates issued by a coroner under section 23 of
the Coroners Act 1985. On and from the commencement of the
Bill, a certificate issued under section 23 of the Coroners Act
1985 is taken to be an order made by a coroner under clause 47
of the Bill.
Clause 12 provides that a request made to the coroner to not direct an
autopsy under section 29(1) of the Coroners Act 1985 is, on
and from the commencement day, taken to be a request made
under clause 26(2) of the Bill. Clause 12 also provides that a
notice under section 29(1) of the Coroners Act 1985 is, on and
from the commencement day, taken to be a notice made under
section 26(3).
Clause 13 provides that an order made by the State Coroner that a body be
exhumed under section 46 of the Coroners Act 1985 is, on and
from the commencement day, taken to be an authorisation made
by the State Coroner under clause 46 of the Bill.
Clause 14 provides that clause 114 of the Bill applies to any thing taken into
possession under section 26 of the Coroners Act 1985 that is still
in the possession of a coroner on and from the commencement
day.
Clause 15 provides for the continuation of the office by the people who hold
the office of the State Coroner and Deputy State Coroner under
the Coroners Act 1985 immediately before the Bill comes into
operation.
Clause 16 provides for the continuation of the office by the people who hold
the office of coroner under the Coroners Act 1985 immediately
before the Bill comes into operation.
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Clause 17 provides for depositions that were made under the Coroners Act
1958 and Coroners Act 1985, for the purpose of section 55AB
of the Evidence Act 1958.
Clause 18 provides for the possibility of section 44 of the Public Health
and Wellbeing Act 2008 coming into operation after the Bill
comes into operation.
Clause 19 provides for regulations to be made dealing with transitional
provisions.
SCHEDULE 2--CONSEQUENTIAL AMENDMENTS TO
OTHER ACTS
Schedule 2 of the Bill deals with consequential amendments to the Acts listed
in the Schedule.
Item 7.3 provides that, if access to a place is restricted under section 98 of
the Country Fire Authority Act 1958, it is an offence under that
Act for a person to enter or interfere with that place.
The maximum penalty is 60 penalty units or imprisonment for
6 months, which is consistent with clause 38 of the Bill.
Item 8 substitutes a new paragraph (ca) in section 2(1) of the Court
Security Act 1980, which provides that, in the case of the
Coroners Court, a "clerk" is a registrar of the Coroners Court.
The expression "registrar of the Coroners Court" would have the
same meaning as "registrar" in clause 3(1) of the Bill.
Item 17.3 provides that, if access to a place is restricted under section 71 of
the Metropolitan Fire Brigade Act 1958, it is an offence under
that Act for a person to enter or interfere with that place.
The maximum penalty is 60 penalty units or imprisonment for
6 months, which is consistent with clause 38 of the Bill.
24