Chief Coroner comments on another round of change

First there was the Law Commission’s “Report 62” of 2000, whose recommendations still resonate today. Then, a new Coroners Act 2006 elevated the standing of coroners and their work and enshrined the office of Chief Coroner in statute. Now, in 2013, Judge Neil Maclean, Chief Coroner since 2007, is contemplating greater and graver responsibility in his role, as Courts Minister Chester Borrows proposes more reform.

In June, Minister Borrows presented to Cabinet’s Social Policy Committee a paper called “Coroners Act Review: Proposals for Reform - Paper 1”.

This contains 32 recommendations for amendments to the Act, on how coroners make findings, who should be involved in the development of coronial recommendations, reducing the duration and increasing the efficiency of inquiries and inquests, and looking at ways in which the Chief Coroner may better manage workloads. Judge Maclean is clear in his view that the content of coroners’ findings and recommendations are matters of wide public interest.

“It touches on something I know is of concern to the Minister: that in some way coroners are getting too big for their boots. That they are starting to make recommendations which are sweeping in their implications in terms of cost and otherwise, and may be seen to be requiring legislative change but from a very limited perspective of the particular death they have in front of them.”

A related issue arises when agencies which may have perceived or actual interests in an inquiry do not have input into what, or how, a coroner finds.

“I accept that there have been cases where coroners have made recommendations directed at an entity such as a specific DHB, a ministry or part of a ministry, and we get a response back saying ‘we wish we had known that you were going to say this because we would have liked to have had some input into it’,” he says.

“There is a legitimate case for saying that in some cases it’s been overlooked that as a matter of natural justice, if you’re going to say something about somebody, you ought to at least let them know you are [going to do so].”

Minister Borrows’ proposals include narrowing the focus of findings and recommendations to the case and evidence concerning a particular death, before a coroner, widening the scope of s23 of the Act, and creating a new definition of “interested party”.

Judge Maclean sees problems with the latter proposal, where the law alone may not ensure coroners can discern with safety the public standing, relevance or value of views held by interested parties.

“[It’s] very difficult,” he says. “There comes a point where I think to try and write it all down in advance just creates more of a problem than it solves. Ultimately you have to leave it to each of the 16 coroners to just use their judicial nous and general knowledge to make sure that somehow, some way, they did truly get the right evidence from the right people and did take into account the various conflicting interests of the particular interest groups.”

Readers may be crying “Practice notes!!” at this point. The good news is that Judge Maclean will be required to produce a lot more of them if proposed amendments become law, on subjects such as conduct and qualifications of expert witnesses, disclosure of evidence to witnesses at inquest, format of findings and even the use of pre-hearings.

“There’s a feeling I should have been issuing more practice notes. My view’s been even though we’re now six years into the new regime, it was a sea change from what we had before and it needed time to settle down just to see patterns that were emerging.

“I take on the chin the fact that for outsiders, be they lawyers unfamiliar with the system or other interested parties, it’s difficult to find out what the practice is,” he concedes.

So what will new practice notes look like? The Judge proposes they might replicate much of what’s stated in the bench book: “Where it’s a death in this area, the key agencies are Ministry X or Ministry Y.”

He says the notes could also ensure that lawyers and the public are aware of the job descriptions of the myriad agencies with which coroners interact.

Judge Maclean expresses frustration that his ongoing call for mandatory responses from agencies who are, or should be, primary audiences of recommendations, or who have interests in coroners’ findings, has not been taken up in this first stage of review.

“I’m not urging that coroners have a power to direct a government department or quasi-government organisation to do something,” he clarifies. “That’s not a power coroners have traditionally, nor do they seek it.

“What I’m talking about is what has become quite routine practice in Victoria, Australia, where there’s a requirement within a reasonably tight timeframe for a written response to the state coroner, from an organisation about whom recommendations are made.”

The judge describes his view as being “driven by lawyers who speak to me and say ‘look, we’ve put a lot of work into putting up stuff to a coroner, the coroner thinks long and hard about it and makes some recommendations, and then they just disappear into a black hole’.”

Another matter on Judge Maclean’s wish list is to turn the coronial service into a court of record in its own right.

“The reality is that the Law Commission identified back in 2000 that coroners felt they were the poor relations of the judicial system; they were undervalued, underrated, morale was low. We’ve moved on in great strides from that. But I know the coroners would welcome recognition that there is and always has been a coroners court.

Let’s legitimise it, let’s say that is right and that’s what it is.”

Judge Maclean sees the adoption of a custom of precedence in respect of findings, wider use of case law in general, the creation of a “bench” of coroners and more durable process for allocation of coroners to cases, as tangible benefits of his proposal.

A second paper outlining more proposals for reform will be presented to Cabinet in August. It will be interesting to see whether the Chief Coroner’s cry will be heard.

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