Coroners Act 2009 (NSW)

Coroners Act 2009 No 41 An Act to provide for the appointment and functions of coroners and assistant coroners; to repeal the Coroners Act 1980; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Coroners Act 2009. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsections (2) and (3). (2) Schedule 3.4[1] commences— (a) if Schedule 1.3[4] to the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 commences on or before the date of assent to this Act—on the date of assent to this Act, or (b) if Schedule 1.3[4] to the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 commences after the date of assent to this Act—on the day on which Schedule 1.3[4] to that Act commences. (3) Schedule 3.4[2]–[4] commence— (a) if the Local Courts Act 1982 is repealed on or before the date of assent to this Act—on the date of assent to this Act, or (b) if the Local Courts Act 1982 is repealed after the date of assent to this Act—on the day on which the Local Courts Act 1982 is repealed. 3 Objects of Act The objects of this Act are as follows— (a) to provide for the appointment of coronial officers, (b) to provide that Magistrates are coroners by virtue of office, (c) to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths, (d) to enable coroners to investigate fires and explosions that destroy or damage property within the State in order to determine the causes and origins of (and in some cases, the general circumstances concerning) such fires and explosions, (e) to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies), (f) to provide for certain kinds of deaths or suspected deaths to be reported and to prevent death certificates being issued in relation to certain reportable deaths, (g) to prohibit the disposal of human remains without appropriate authority. 4 Definitions (cf Coroners Act 1980, s 4) (1) In this Act— adult means an individual who is aged 18 years old or older. Australian law has the same meaning as it has in the Evidence Act 1995. civil penalty has the same meaning as it has in the Evidence Act 1995. Coronial Medical Officer means a medical practitioner appointed under section 92. coronial proceedings—see section 46. Domestic Violence Death Review Team means the Domestic Violence Death Review Team constituted under Chapter 9A. exercise a function includes perform a duty. function includes a power, authority or duty. inquest means an inquest concerning the death or suspected death of a person. inquiry means an inquiry concerning a fire or explosion. place includes any land, building, mine, ship, vehicle or aircraft or any other vessel or vehicle. post mortem investigation direction—see section 89. post mortem investigation report—see section 89(7). practice note means a practice note issued under section 52. relative, in relation to a person who has or is suspected to have died—see section 5. remains of a deceased person means the body or the remains of the body (or any part of the body or remains of the body) of the person. reportable death—see section 6. senior coroner—see section 22(1). senior next of kin—see section 6A. spouse means— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) a de facto partner, but where more than one person would so qualify as a spouse, means only the last person so to qualify. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. stillbirth and stillborn child have the same meanings as in the Births, Deaths and Marriages Registration Act 1995. the State means the State of New South Wales. tissue includes an organ, or part, of a human body and a substance extracted from, or from a part of, a human body (including bodily fluid). whole organ of a deceased person means the whole or a substantial part of a visibly recognisable structural unit of the person's body. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. Note— For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings drawing attention ("cf") to equivalent or comparable (though not necessarily identical) provisions of the Coroners Act 1980 as in force immediately before its repeal by this Act. 5 Meaning of "relative" (cf Coroners Act 1980, s 4(1) and (5)) (1) For the purposes of this Act, a relative, in relation to a person who has or is suspected to have died, is an adult who is— (a) the spouse of that person, a parent of that person, a person who stands in loco parentis to that person, a guardian of that person or a child of that person, or (b) if there is no relative, as defined in paragraph (a), of that person—a brother or sister of that person. (2) A reference in subsection (1)(a) to the child of a person includes, if the person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, a reference to the following— (a) a child born as a result of sexual relations between the parties to the relationship, (b) a child adopted by both parties, (c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted), (d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996, (e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998). Note— "De facto relationship" is defined in section 21C of the Interpretation Act 1987. (3) A reference in subsection (1)(a) to a parent includes a reference to a party to a relationship referred to in subsection (2) of which the deceased, or suspected deceased, was by virtue of subsection (2) a child. 6 Meaning of "reportable death" (cf Coroners Act 1980, ss 12B(1)(a)–(g) and 13(1)(a)–(c), (e)–(h) and (2)) (1) For the purposes of this Act, a person's death is a reportable death if the death occurs in any of the following circumstances— (a) the person died a violent or unnatural death, (b) the person died a sudden death the cause of which is unknown, (c) the person died under suspicious or unusual circumstances, (d) (Repealed) (e) the person died in circumstances where the person's death was not the reasonably expected outcome of a health-related procedure carried out in relation to the person, (f) the person died while in or temporarily absent from a declared mental health facility within the meaning of the Mental Health Act 2007 and while the person was a patient at the facility for the purpose of receiving care, treatment or assistance under the Mental Health Act 2007 or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. (2) (Repealed) (3) In this section— health-related procedure means a medical, surgical, dental or other health-related procedure (including the administration of an anaesthetic, sedative or other drug), but does not include any procedure of a kind prescribed by the regulations as being an excluded procedure. 6A Meaning of "senior next of kin" (1) For the purposes of this Act, the senior next of kin of a deceased person is— (a) the deceased person's spouse, or (b) if the deceased person did not have a spouse or a spouse is not available—any of the deceased person's children who are adults, or (c) if the deceased person did not have a spouse or child or a spouse or child is not available—either of the deceased person's parents, or (d) if the deceased person did not have a spouse, child or living parent or a spouse, child or parent is not available—any of the deceased person's brothers or sisters who are adults, or (e) if the deceased person did not have a spouse, child, living parent, brother or sister or a spouse, child, parent, brother or sister is not available— (i) any person who is named as an executor in the deceased person's will, or (ii) any person who was the deceased person's legal personal representative immediately before the deceased person's death. (2) A coroner may treat a person who was a deceased person's legal personal representative immediately before the deceased person's death as the deceased person's senior next of kin for the purposes of this Act if the coroner is satisfied that the person who is available to act as senior next of kin is unable to do so. Chapter 2 Coronial officers 7 State Coroner and Deputy State Coroners (cf Coroners Act 1980, s 4A(1)–(3), (5) and (7)) (1) The Governor may appoint any qualified person to be the State Coroner or a Deputy State Coroner. (2) A person is qualified to be appointed as the State Coroner or a Deputy State Coroner only if the person is a Magistrate. (3) An appointment is to be made by the commission of the person's appointment as a Magistrate or by a subsequent commission under the public seal of the State. (4) More than one person may hold the office of Deputy State Coroner at any one time. (5) The State Coroner or a Deputy State Coroner holds office for such period (not exceeding 5 years) as may be specified in the commission that appointed the State Coroner or Deputy State Coroner to the office, but is eligible (if otherwise qualified) for re-appointment. (6) The State Coroner has, while holding office as such, the same status as a Deputy Chief Magistrate. (7) The State Coroner and a Deputy State Coroner are coroners for the purposes of this Act. (8) Parts 1 and 3 of Schedule 1 contain general provisions dealing with the vacation of the office of State Coroner or a Deputy State Coroner, remuneration and the effect of an appointment to such offices on other offices held by the person appointed. 8 Acting State Coroner (cf Coroners Act 1980, s 4F(1A) and (2)) (1) The Minister may appoint a Deputy State Coroner to be Acting State Coroner during the absence from duty of the State Coroner. (2) The Minister may make any appointment for a particular absence or for any absence that occurs from time to time. (3) An Acting State Coroner has the functions of the State Coroner and, for the purposes of this or any other Act or law, is taken to be the State Coroner. (4) In this section, absence from duty includes a vacancy in the office of State Coroner. 9 Delegation by State Coroner (cf Coroners Act 1980, s 4E) (1) The State Coroner may delegate to a Deputy State Coroner or to another coroner the exercise of any of the State Coroner's functions under this Act, except as provided by subsection (2). Note— Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions. (2) The State Coroner may not— (a) delegate the power of delegation conferred by subsection (1), or (b) delegate to a coroner who is not a Deputy State Coroner the exercise of any jurisdiction conferred or imposed on the State Coroner by Division 2 of Part 3.2. 10 Functions of State Coroner and Deputy State Coroners (cf Coroners Act 1980, ss 4D and 4F(1)) (1) The functions of the State Coroner are— (a) to oversee and co-ordinate coronial services in the State, and (b) to ensure that all deaths, suspected deaths, fires and explosions concerning which a coroner has jurisdiction to hold an inquest or inquiry are properly investigated, and (c) to ensure that an inquest or inquiry is held whenever it is required by this Act to be held or it is, in the State Coroner's opinion, desirable that it be held, and (d) to issue guidelines to coroners to assist them in the exercise or performance of their functions, and (e) to exercise such other functions as are conferred or imposed on the State Coroner by or under this or any other Act. (2) The State Coroner is, in the exercise of a function under this section, subject to the control and direction of the Chief Magistrate. (3) The functions of a Deputy State Coroner are— (a) to exercise any functions delegated to the Deputy State Coroner by the State Coroner, and (b) to exercise such other functions as are conferred or imposed on a Deputy State Coroner by or under this or any other Act. (4) The State Coroner and each Deputy State Coroner is to support and assist the Domestic Violence Death Review Team in the exercise of its functions under Chapter 9A. Note— The State Coroner or a Deputy State Coroner may be appointed as Convenor of the Team under section 101E. 11 Information to be given to State Coroner (cf Coroners Act 1980, s 4G(1)) The State Coroner may issue general directions to coroners requiring them to give to the State Coroner information they receive concerning deaths, suspected deaths, fires or explosions. 12 Coroners (cf Coroners Act 1980, ss 5 and 6) (1) The Governor may, by instrument in writing on the recommendation of the Minister, appoint any qualified person to be a coroner. (2) A person is qualified to be appointed as a coroner only if the person is an Australian lawyer. (3) An instrument of appointment may provide that the person appointed as a coroner is appointed for such period (if any) as may be specified in the instrument. (4) A person who is aged 72 years old or older may not be appointed as a coroner unless— (a) the Minister recommends to the Governor that the person's appointment is appropriate, and (b) the appointment is made for such term (not exceeding 3 years) as is specified in the person's instrument of appointment. (5) A coroner appointed as provided by subsection (4) is eligible for re-appointment from time to time as provided by that subsection. (6) The Governor may, for any cause that seems to the Governor sufficient, remove any coroner appointed under this section from office. (7) Parts 2 and 3 of Schedule 1 contain general provisions dealing with the vacation of the office of a coroner appointed under this section, remuneration and the effect of an appointment to such an office on other offices held by the person appointed. 13 Assistant coroners (cf Coroners Act 1980, s 5A(1) and (2)) (1) The Minister may, by instrument in writing, appoint a person employed in the Department of Communities and Justice to be an assistant coroner. (2) An instrument of appointment may provide that the person appointed as an assistant coroner is appointed for such period (if any) as may be specified in the instrument. (3) The Minister may, for any cause that seems to the Minister sufficient, remove any assistant coroner from office. (4) Parts 2 and 3 of Schedule 1 contain general provisions dealing with the vacation of the office of an assistant coroner, remuneration and the effect of an appointment to such an office on other offices held by the person appointed. 14 Appointed coroners have full coronial jurisdiction and functions (cf Coroners Act 1980, s 8) A coroner appointed under this Act— (a) has all the jurisdiction and functions conferred or imposed on coroners by or under this Act, but (b) does not have any of the jurisdiction or functions of the State Coroner or a Deputy State Coroner unless appointed to such an office under this Act. 15 Functions of assistant coroners (cf Coroners Act 1980, s 9) (1) An assistant coroner has the following functions— (a) the function of providing administrative assistance to a coroner under the control and direction of the coroner, (b) such of the following functions as may be delegated in writing to the assistant coroner by the State Coroner— (i) the function of issuing orders for the disposal of the remains of deceased persons, (ii) the function of issuing post mortem investigation directions, (iii) the function of dispensing with the holding of inquests if death results from natural causes, (iv) the function of dispensing with the holding of inquiries if a fire or explosion does not occur in suspicious circumstances, (v) the function of dispensing with the holding of inquiries if a fire involved only a motor vehicle, (c) such other functions as may be conferred or imposed on an assistant coroner by or under this or any other Act. Note— Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions. (2) An assistant coroner cannot hold an inquest or inquiry and the function of holding an inquest or inquiry cannot be delegated to an assistant coroner by the State Coroner. (3) This section does not authorise an assistant coroner to exercise any function conferred or imposed on a coroner, except as specifically provided for by delegation under this section or by this or any other Act. 16 Magistrates have coronial functions by virtue of office (cf Coroners Act 1980, ss 6A(4) and 10) (1) A Magistrate who has not been appointed to any of the offices of State Coroner, Deputy State Coroner or coroner under this Act— (a) has, by virtue of his or her office as a Magistrate, all of the jurisdiction and functions that are conferred or imposed on coroners by or under this or any other Act, and (b) is taken to be a coroner, but does not have any of the jurisdiction or functions of the State Coroner or a Deputy State Coroner. (2) A Magistrate who is taken to be a coroner by reason of the operation of subsection (1) ceases to have the jurisdiction and functions of a coroner, and ceases to be taken to be a coroner, on ceasing to be a Magistrate. (3) Despite anything to the contrary in this Act, the Chief Magistrate may (but need not) comply with any direction given by the State Coroner under this Act in relation to the exercise by the Chief Magistrate of any function conferred or imposed on the Chief Magistrate by operation of subsection (1). Chapter 3 Coronial jurisdiction Part 3.1 General 17 Coronial jurisdiction generally (1) In this Chapter— (a) Part 3.2 confers jurisdiction on coroners to hold inquests concerning certain deaths and suspected deaths of persons, and (b) Part 3.3 confers jurisdiction on coroners to hold inquiries concerning certain fires and explosions that do not involve deaths or suspected deaths, and (c) Part 3.4 deals with miscellaneous matters relating to the exercise of any such jurisdiction. (2) Subject to this Act, the jurisdiction conferred by this Chapter extends to deaths, suspected deaths, fires and explosions occurring before the commencement of this section. Note— Section 19 provides that there is no jurisdiction to hold an inquest concerning a death or suspected death if it occurred more than 100 years ago. Also, Part 2 of Schedule 2 makes savings and transitional arrangements in connection with inquests and inquiries concerning deaths, suspected deaths, fires and explosions occurring before the commencement of this Act. 18 Jurisdiction concerning death requires connection with the State (cf Coroners Act 1980, s 13C) (1) A coroner does not have jurisdiction to hold an inquest concerning a death or suspected death unless it appears to the coroner that— (a) the remains of the person are in the State, or (b) the death or suspected death or the cause of the death or of the suspected death occurred in the State, or (c) the death or suspected death occurred outside the State but the person had a sufficient connection with the State, as referred to in subsection (2). (2) A person had a sufficient connection with the State if the person— (a) was ordinarily resident in the State when the death or suspected death occurred, or (b) was, when the death or suspected death occurred, in the course of a journey to or from some place in the State, or (c) was last at some place in the State before the circumstances of his or her death or suspected death arose. 19 No jurisdiction concerning death or suspected death unless occurring within last 100 years (cf Coroners Act 1980, s 13B) A coroner does not have jurisdiction to hold an inquest concerning a death or suspected death unless it appears to the coroner that (or that there is reasonable cause to suspect that) the death or suspected death occurred within the last 100 years. 20 Jurisdiction does not depend on making of report Any jurisdiction of a coroner to hold an inquest concerning a death or suspected death, or an inquiry concerning a fire or explosion, arises even if the death, suspected death, fire or explosion has not been reported to a coroner or other person in accordance with a requirement to do so under this Act. Part 3.2 Inquests concerning deaths Division 1 General jurisdiction to hold inquests 21 Inquests concerning deaths or suspected deaths (cf Coroners Act 1980, s 13) (1) A coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that— (a) the person's death is (or there is reasonable cause to suspect that the person's death is) a reportable death, or (b) a medical practitioner has not given (or there is reasonable cause to suspect that a medical practitioner has not given) a certificate as to the cause of death. (2) The reference to a medical practitioner in subsection (1)(b) includes, if it appears to the coroner that the death or suspected death occurred at a place outside the State, a reference to a person entitled under the law in force in that place to issue a certificate as to the cause of death. Division 2 Exclusive jurisdiction of State Coroner and Deputy State Coroners 22 Division confers exclusive jurisdiction (cf Coroners Act 1980, ss 13A(2) and 13AB(2)) (1) The jurisdiction conferred by this Division is conferred exclusively on any coroner who holds office as the State Coroner or a Deputy State Coroner (a senior coroner). (2) If jurisdiction to hold an inquest concerning a death or suspected death arises both under this Division and Division 1, an inquest concerning the death or suspected death may be held only by a senior coroner. 23 Jurisdiction concerning deaths in custody or as a result of police operations (cf Coroners Act 1980, s 13A(1)) (1) A senior coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person has died (or that there is reasonable cause to suspect that the person has died)— (a) while in the custody of a police officer or in other lawful custody, or (b) while escaping, or attempting to escape, from the custody of a police officer or other lawful custody, or (c) as a result of police operations, or (d) while in, or temporarily absent from, any of the following institutions or places of which the person was an inmate— (i) a detention centre within the meaning of the Children (Detention Centres) Act 1987, (ii) a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999, (iii) a lock-up, or (e) while proceeding to an institution or place referred to in paragraph (d), for the purpose of being admitted as an inmate of the institution or place and while in the company of a police officer or other official charged with the person's care or custody. (2) In this section— police operation means any activity engaged in by a police officer while exercising the functions of police officer other than an activity for the purpose of a search and rescue operation. 24 Jurisdiction concerning deaths of children and disabled persons (cf Coroners Act 1980, s 13AB(1), (3) and (4)) (1) A senior coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person was (or that there is reasonable cause to suspect that the person was)— (a) a child in care, or (b) a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately preceding the child's death, or (c) a child who is a sibling of a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately preceding the child's death, or (d) a child whose death is or may be due to abuse or neglect or that occurs in suspicious circumstances, or (e) a person (whether or not a child) who, at the time of the person's death, was living in, or was temporarily absent from, specialist disability accommodation or an assisted boarding house, or (f) a person, other than a child in care, who— (i) is a person in the relevant group, and (ii) receives assistance of a kind prescribed by the regulations from a service provider to enable the person to live independently in the community. (2) If jurisdiction to hold an inquest concerning the death of a child arises under this section or section 23, the senior coroner must use his or her best endeavours to notify the following persons of any right that they have to legal representation at the inquest— (a) the persons having parental responsibility for the child, (b) the child's parents (if they do not have that responsibility), (c) such family members as would be reasonably expected to have an immediate interest in the outcome of the inquest. (3) In this section— assisted boarding house has the same meaning as it has in the Boarding Houses Act 2012, and includes— (a) premises that would be an assisted boarding house within the meaning of that Act but for an exemption for the premises granted under section 40 of, or given by the regulations under, that Act, and (b) premises that were a residential centre for disabled persons (within the meaning of this section before it was amended by that Act) at the time of the death concerned. child means a person who is less than 18 years old. child in care means a child or young person who is less than 18 years old— (a) who is under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998, or (b) for whom the Secretary of the Department of Family and Community Services or a designated agency has the care responsibility under section 49 of the Children and Young Persons (Care and Protection) Act 1998, or (c) who is a protected person within the meaning of section 135A of the Children and Young Persons (Care and Protection) Act 1998, or (d) who is the subject of an out-of-home care arrangement under the Children and Young Persons (Care and Protection) Act 1998 or the Children's Guardian Act 2019, or (d1) who is in specialised substitute residential care within the meaning of the Children's Guardian Act 2019, or (e) who is the subject of a sole parental responsibility order under section 149 of the Children and Young Persons (Care and Protection) Act 1998, or (f) who is otherwise in the care of a service provider. parental responsibility, in relation to a child or young person, means all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children. person in the relevant group—see section 24A. service provider has the same meaning as it has in the Community Services (Complaints, Reviews and Monitoring) Act 1993. specialist disability accommodation means premises— (a) enrolled under the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 of the Commonwealth, section 26, and (b) that is, or is a type of premises, prescribed by the regulations to be specialist disability accommodation, and (c) that is not, or is not a type of premises, prescribed by the regulations to not be specialist disability accommodation. 24A Meaning of "person in the relevant group" (1) For this Act, a person in the relevant group is a person who has a disability, whether or not of a chronic episodic nature, that— (a) is attributable to an intellectual, cognitive, neurological, psychiatric, sensory or physical impairment, or a combination of those impairments, and (b) is permanent or likely to be permanent, and (c) results in a significant reduction in the person's functional capacity in one or more areas of major life activity, including, for example, communication, social interaction, learning, mobility, decision-making, self-care and self-management, and (d) results in the need for support, whether or not of an ongoing nature. (2) To avoid doubt, each of the following persons, within the meaning of the Mental Health Act 2007, is a person in the relevant group if the person has a disability referred to in subsection (1)— (a) an involuntary patient or a forensic patient, (b) a person subject to a community treatment order, (c) a person under detention in a mental health facility. (3) A person in the relevant group includes a child under 6 years of age who has developmental delay within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth. (4) To avoid doubt, a person with a permanent disability is a person in the relevant group even if the severity of the person's impairment because of the disability may diminish over time or the person's condition may improve. (5) In this section— disability, in relation to a person, includes a long-term physical, psychiatric, intellectual or sensory impairment that, in interaction with various barriers, may hinder the person's full and effective participation in the community on an equal basis with others. support means assistance provided to a person with disability to do one or more of the following— (a) help the person undertake the person's day to day activities, (b) increase the person's independence, (c) facilitate the person's social and economic inclusion in the community. Division 3 When inquest may be dispensed with 25 Coroner may dispense with inquest unless inquest required (cf Coroners Act 1980, s 14) (1) A coroner who has jurisdiction to hold an inquest concerning the death or suspected death of a person may dispense with the inquest unless an inquest is required to be held under this Part. (2) Without limiting subsection (1), a coroner who has jurisdictio