Imagine losing your teenage son and then having to wait five years for the Coronial Inquest to be finalised. That was the distressing experience for one of our clients. Such unacceptable delays in the coronial system are common, particularly in regional NSW.

Delays heighten the re-traumatising impact that a coronial inquest can have on grieving families. Holding an inquiry several years after a death may also detract from the quality of the evidence and diminish the usefulness of a coroner’s recommendations.

A NSW parliamentary report has made 35 recommendations to enable a long overdue overhaul of the NSW Coroners Court and its supporting legislation. The focus on the operation of the coronial system in NSW is welcome. The government needs to change the Coroner’s Act and implement the recommendations as quickly as possible.

The Inquiry into Coronial Jurisdiction in NSW

The Legislative Council Select Committee on the Coronial Jurisdiction in New South Wales was established in 2021 after a select committee on the high level of First Nations people in custody and review of deaths in custody during 2019 and 2020 identified many issues of concern.

In September 2021, our Principal, Catherine Henry, gave evidence to the Inquiry in her role as the spokesperson for the Australian Lawyers Alliance (ALA) on health law matters in NSW. She spoke to the ALA’s submission to the Inquiry which, among other things, highlighted issues with the structure of the Coroner’s Court of New South Wales. Many submissions highlighted the same points:

• lack of funding and resourcing of the NSW Coroner’s Court
• delays in commencing and completing coronial inquests
• the need for a trauma-informed, culturally appropriate approach within the conduct of the coronial processes
• the capacity of the NSW Coroner’s Court to examine systemic issues
• the need for greater accountability for implementing recommendations made by NSW Coroners.

The chairperson of the Inquiry Committee, The Hon Adam Searle MP, summed up the issues in the Inquiry report.

“However, despite everyone’s best efforts, evidence given to this inquiry shows that the Court is experiencing very heavy workloads for coroners as well as for forensic and other staff, and lacks sufficient resources to undertake the important work before it. This has led to delays in finalising matters, further grief for bereaved persons and families and a significant and growing backlog of cases. There are workforce constraints across the system and the current structure of the court is out of date; it does not recognise and support the specialist nature of the jurisdiction and the unique role it plays in our system of justice.”

Issues with the Current Coroners Act NSW

The current Act is outdated and does not reflect or express the objective of preventing future loss of life. The Court is constrained by the legislation and lacks powers, especially in relation to First Nation peoples.

The coronial jurisdiction had not been thoroughly examined since 1975. The statutory review of the existing Coroners Act 2009 (NSW) was due in 2014 and is yet to be finalised.

The Inquiry Committee believes death prevention is the central tenet of modern coronial practise and this should be directly expressed in the Act as its overriding objective.

Other legislative issues identified by the Committee reflect what our lawyers see in the coronial inquests we are involved in for clients.

• The need for an inquest to deliver findings on the manner of a death when in other states make a finding “in Chambers” may be made.
• A lack of recognition of the role of families in the inquest process which further extends to holistic support and recognition of cultural and religious beliefs within the forensic and inquest processes.
• Interagency co-operation, roles and sharing of information.
• Referrals to the Office of the Director of Public Prosecutions.
• No legislative requirement to respond to the coroner’s recommendations and no oversight to ensure recommendations are implemented.

Underfunding of the Coronial Process in NSW

The NSW Coroners Court and associated services are chronically underfunded and under-resourced which leads in turn to chronic delays and backlogs.

A Productivity Commission report shows that in 2019-20 NSW’s recurrent expenditure on coronial services was $6.9 million, compared with $21.5 million in Victoria and $12.4 million in Queensland. Victoria has nine full-time coronial positions and Queensland has eight, compared with just five in NSW.

An outdated hybrid Coroners Court model in NSW

Unlike other states, NSW has a hybrid Coroners Court model. There are only five coroners and the balance of inquests, particularly in regional areas, are heard by over-worked local court magistrates.

By contrast, Victoria, Queensland, South Australia and Western Australia have specialist judicial officers working only in the inquest jurisdiction.

Victoria reformed its coronial system back in 2009, taking it from a system – similar to the current NSW system – to a standalone court. The Coroners Court of Victoria is centralised and well funded, and its legislation has the primary objective of decreasing preventable deaths.

As the Aboriginal Legal Service noted when welcoming the Inquiry report – the NSW Coroner’s Court should be about saving lives – not just reviewing deaths.

Delays with Inquests

Delays are reported throughout all the stages of an inquest from the time the death is reported through to findings and recommendations. The backlog of cases is estimated at approximately 130 cases and there can be a delay of 3-5 years for some matters. As well as a lack of resources, another reason for delays is the over reporting of natural deaths, which make up 60% of referrals and finalising post-mortem reports. According to the Department of Communities and Justice, post mortem examinations are completed within days however the reports then take months to complete with a median period of 160 days. This is attributed to a chronic shortage of forensic pathologists both in Australia and worldwide.

Workplace Deaths

There are high levels of workplace deaths in NSW. Surprisingly these are not investigated by the coroner and inquests are very infrequent or not held at all. Work related deaths are investigated by SafeWork NSW. This has been found to be unsatisfactory due to the nature of the investigations and the use of the adversarial prosecution system to resolve issues.

Health care related deaths

The Australian Medical Association and Nurses and Midwives Association raised the issue of the Root Cause Analysis being used for evidence in inquests. Under section 6C Health Administrative Act 1982 (NSW) coroners may request but not compel an RCA and the RCA cannot be referred to in any coronial findings. The RCAs are inadmissible as the witnesses have no access to legal services or counselling when they are interviewed for the RCA.

Key Inquiry recommendations

The Committee made 35 recommendations. Some of the key recommendations are listed below. You can read the full report and recommendations here.

• The Coroners Act be reviewed and amended.
• Department of Communities and Justice (DCJ) review of their management of data and improve their system to enable performance monitoring.
• NSW government allocate increased resources and funding.
• The structure of the system be changed to that similar to the Children’s Court NSW system where the Coroners Court is an autonomous court linked to the Local Court system. The coroners are selected from the magistrate’s pool but are specialist coroners.
• The government review and amend the act for the coroner to make findings without an inquest.

How we can help with a coronial inquest

Our expert health and medical lawyers have extensive experience in helping clients with advice and representation regarding coronial inquests. Read our info sheet on what’s involved in an inquest and how to seek one here. Call our team for a no obligation discussion on 1800 874 949 or fill out the contact form below, and we will be in touch.

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