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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Coroners (Inquests and Privilege) Amendment
Bill 2020
A BILL FOR
An Act to amend the
Coroners
Act 2003
, and to make a related amendment to the
Guardianship
and Administration Act 1993
.
Contents
Part 2—Amendment of Coroners
Act 2003
4Amendment of section
3—Interpretation
5Amendment of section
21—Holding of inquests
6Amendment of section
23—Proceedings on inquests
23APrivilege in
respect of self-incrimination and penalty
Schedule 1—Related amendment and
transitional provision
Part 1—Amendment of Guardianship
and Administration Act 1993
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Coroners (Inquests and Privilege) Amendment
Act 2020.
This Act comes into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Coroners
Act 2003
4—Amendment
of section 3—Interpretation
Section 3(1), definition of reportable death,
(f)(iii)—after "
Mental
Health Act 1993
" insert:
or the
Mental
Health Act 2009
5—Amendment
of section 21—Holding of inquests
(1) Section 21(1)(b)—after subparagraph (iv) insert:
or
(v) the death of a person (whether before or after the commencement of
this subparagraph) who apparently died from natural causes, as certified by a
medical practitioner, while—
(A) subject to an order under section 32(1)(b) of the
Guardianship
and Administration Act 1993
; or
(B) —
• subject to an inpatient treatment order under Part 5 of the
Mental
Health Act 2009
; and
• held in a ward (however described) of a hospital or other facility
that is an approved treatment centre under the
Mental
Health Act 2009
where the whole of the ward is not set aside for the treatment of persons
with a mental illness;
(2) Section 21—after subsection (3) insert:
(4) For the purposes of subsection (1)(a) and the definition of
death in custody in section 3(1), the death or apparent death
of a person (whether before or after the commencement of this subsection) from
natural causes, as certified by a medical practitioner, while—
(a) subject to an inpatient treatment order under Part 5 of the
Mental
Health Act 2009
; and
(b) held in a ward (however described) of a hospital or other facility
that is an approved treatment centre under the
Mental
Health Act 2009
where the whole of the ward is set aside for the treatment of persons with
a mental illness,
will be taken to be a death in custody.
(5) Despite the
definition of death in custody in section 3(1), for the
purposes of subsection (1)(a), the death or apparent death of a person
(whether before or after the commencement of this subsection) from natural
causes, as certified by a medical practitioner, while—
(a) subject to an order under section 32(1)(b) of the
Guardianship
and Administration Act 1993
; or
(b) —
(i) subject to an inpatient treatment order under Part 5 of the
Mental
Health Act 2009
; and
(ii) held in a ward (however described) of a hospital or other facility
that is an approved treatment centre under the
Mental
Health Act 2009
where the whole of the ward is not set aside for the treatment of persons
with a mental illness,
will not be taken to be a death in custody.
(6) In this section—
mental illness has the same meaning as in the
Mental
Health Act 2009
;
treatment has the same meaning as in the
Mental
Health Act 2009
.
6—Amendment
of section 23—Proceedings on inquests
(1) Section 23(4)—delete "A person" and substitute:
Subject to section 23A, a person
(2) Section 23(5)—delete subsection (5) and substitute:
(5) However, a person is not required to answer a question, or to produce
a record or document, under this section if answering the question, or producing
the record or document, would result in a breach of legal professional
privilege.
After section 23 insert:
23A—Privilege in respect of self-incrimination and
penalty
(1) This section applies if a person objects to answering a question, or
producing a record or document, at an inquest on the ground that the answer,
record or document may tend to—
(a) in the case of a natural person—incriminate the person in
respect of an Australian law or a foreign law; or
(b) in any case—make the person liable to a penalty under an
Australian law or a foreign law.
(2) The Court must determine whether or not there are reasonable grounds
for the objection.
(3) If the Court determines that there are reasonable grounds for the
objection, the Court is to inform the person—
(a) that the person need not answer the question, or produce the record or
document, unless required by the Court to do so under
subsection (4)
; and
(b) that the Court will give a certificate under this section
if—
(i) the person willingly answers the question, or produces the record or
document, without being required to do so under
subsection (4)
; or
(ii) the person answers the question, or produces the record or document,
after being required to do so under
subsection (4)
; and
(c) of the effect of such a certificate.
(4) The Court may
require the person to answer the question, or produce the record or document, if
the Court is satisfied that—
(a) the answer, record or document does not tend to incriminate the person
in respect of, or make the person liable to a penalty under, a foreign law;
and
(b) the interests of justice require that the person answer the question,
or produce the record or document.
(5) If the person—
(a) willingly answers the question, or produces the record or document,
without being required to do so under
subsection (4)
; or
(b) answers the question, or produces the record or document, after being
required to do so under
subsection (4)
,
the Court must cause the person to be given a certificate under this
section in respect of the answer, record or document.
(6) The Court must also cause a person to be given a certificate under
this section if—
(a) the objection has been overruled; and
(b) after the question has been answered, or the record or document
produced, the Court finds that there were reasonable grounds for the
objection.
(7) A certificate under this section may relate to more than
1 question, record or document (or to a combination of 1 or more
questions, 1 or more records and 1 or more documents).
(8) In any proceeding
in a court or before any person or body authorised by a law of this State, or by
consent of parties, to hear, receive and examine evidence—
(a) an answer given, or a record or document produced, by a person in
respect of which a certificate under this section has been given; and
(b) any information, document or thing obtained as a direct or indirect
consequence of the person having answered a question, or produced a record or
document,
cannot be used against the person.
(9) However,
subsection (8)
does not apply to a criminal proceeding in respect of the falsity of the
answer given, or the record or document produced.
(10)
Subsection (8)
has effect despite any challenge, review, quashing or calling into
question on any ground of the decision to give, or the validity of, the
certificate concerned.
(11) This section does not derogate from Parts 7 and 8 of the
Health
Care Act 2008
.
(12) In this section—
Australian law means a law of this State, another State, the
Commonwealth or a Territory of the Commonwealth;
foreign law means a law of a foreign country or of a part of,
or in force in a part of, a foreign country.
Schedule 1—Related
amendment and transitional provision
Part 1—Amendment of Guardianship and
Administration Act 1993
Section 76A—delete the section
Part 2—Transitional
provision
The amendments to section 23 of the
Coroners
Act 2003
by
section 6
and the insertion of section 23A of the
Coroners
Act 2003
by
section 7
—
(a) do not apply in respect of inquests commenced before the commencement
of
sections 6
and
7
(and those inquests may continue as if those sections had not been
enacted); and
(b) apply in respect of inquests commenced after the commencement of
sections 6
and
7
(including inquests in respect of an event occurring before the
commencement of those sections).