The Coroners Act 2009 (NSW) will commence on 1 January 2010. The second reading speech, where the minister explains the reason for the new Act, can be read from the NSW Parliament website.

The Attorney General, in introducing the new Act said “The reforms in this bill broadly deal with four areas of coronial law: governance structure of the coronial jurisdiction; the categories of death that are within the jurisdiction of coroners; the conduct of post-mortems; and the case management of coronial proceedings.” The second reading speech listed a number of organisations that were consulted in developing the new Act. It is interesting to note that neither the NSW Fire Brigades nor the NSW Rural Fire Service were among the organisations listed.

Having said that, the Coroner’s role with respect to the investigation of fires was not a key area of reform in the new Act and although the Act does make some relevant changes to the law, they are perhaps not very significant.

The most significant change, from the point of view of the fire services, appears to be changes with respect to a power to hold a ‘general’ inquiry into a fire.

Under the new Act, the coroner may hold an ” … inquiry concerning the cause and origin of a fire or explosion if the coroner is satisfied that the fire or explosion has destroyed or damaged any property within the State” (s 30(1)). This type of inquiry would be directed at a particular fire or explosion, “what caused this particular house or factory fire?”

A coroner also has a power

(2) ….to hold a general inquiry concerning a fire or explosion that has destroyed or damaged any property within the State, but only if the State Coroner gives a direction under this Part that such a general inquiry be held.
(3) The jurisdiction of a coroner to hold a general inquiry concerning a fire or explosion extends to the examination of all of the circumstances concerning the fire or explosion (including, but not limited to, an examination of its cause and origin).

It can be seen that the scope of a general inquiry under s 30(3) is quite broad. Under the Coroners Act 1980 (NSW) the Coroner’s jurisdiction was to hold “… an inquiry into the cause and origin of a fire or explosion…” (s 15(1)). Although a general inquiry could be held (s 15B) there was no specific direction as to the extent or scope of that inquiry. A general inquiry was still governed by s 15(1) and would have been limited to ” … an inquiry into the cause and origin of a fire or explosion…” Under the 2009 Act the scope of a general inquiry can be much wider.

Given the ruling of the Supreme Court of the ACT (discussed in an earlier post on this site) the difference may not be all that significant. In the ACT litigation the court considered the scope of the Coroner’s jurisdiction give that s 18 of the ACT Act says that the Coroner has jurisdiction to “… hold an inquiry into the cause and origin of a fire …” The ACT Supreme Court held that the terms ’cause and origin’ of a fire meant much more than the source of the ignition and extended to “… those factors that had a causal effect on the development or continuance of the process. ”

That interpretation could also have been applied to the 1980 Act however the 2009 NSW Act reflects that approach and makes it clear that a general inquiry (unlike an inquiry into a particular fire) is not limited but can consider ‘all the circumstances’ of the fire. It makes it clear that an inquiry into a significant fire event such as a large bushfire, can be very broad and consider all aspects of the fire and the response operations.

The 2009 Act gives greater power to the Commissioners of the NSW Fire Brigades and the Rural Fire Service to instigate a coronal inquiry. A coroner is not to hold a general inquiry unless directed to do so by the State Coroner (s 30(2)) and the State Coroner must give that direction if he or she is required to do so by the Commissioner of the relevant fire brigade (ie the NSW Fire Brigades or the Rural Fire Service depending on where the fire occurred) or the Minister (s 32).

This is slightly different to the Coroners Act 1980 (NSW). Under the 1980 Act the State Coroner could order the general inquiry if he or she was aksed to do so by a Commissioner or if he or she was satisfied that “… a general inquiry concerning a fire or explosion that has destroyed or damaged any property within the State should be held …” (s 15B). That is the request was a factor for the State Coroner to consider. Under the new Act the State Coroner must order the general inquiry if either a Commissioner or the Minister requests it.

Finally a relevant provision is in section 82 dealing with the power of the Coroner to make recommendations to prevent future deaths, fires or explosions. The Coroner has always had that power but now the recommendation must be referred to the State Coroner and the relevant Minister. If the Coroner has a recommendation regarding the response of the fire brigades that must now be referred to the relevant Minister for action. Government policy will now require the agency, for example the NSW Fire Brigades or the Rural Fire Service, to report their response to any coronial recommendations and their progress in implementing those recommendations. In his second reading speech the Attorney General said:

The power to make recommendations means nothing unless governments and agencies give careful and serious consideration to their implementation. That is not to say that all coronial recommendations should be implemented, and there may be substantial reasons why it is not appropriate to implement particular recommendations. However, there must be an appropriate framework to ensure that all recommendations are brought to the attention of the appropriate Minister or public official so that they are given proper consideration. …

Clause 82 will ensure that copies of coronial recommendations are also forwarded to the Minister responsible for the legislation or agencies to whom the recommendation is directed.

It is consistent with principles of ministerial responsibility that Ministers ensure that recommendations affecting their portfolio are given serious consideration and that a response is provided to the coroner. In line with this new provision, and as per a commitment made by the Government in March, the Premier has this week issued a memorandum to all Ministers and agencies setting out a new process for responding to coronial recommendations. Under the memorandum, Ministers and agencies who receive recommendations are required to advise the Attorney General within six months whether they will be adopted. Summaries of coroners’ recommendations and responses from Ministers and public officials will then be posted on the website of the Attorney General’s Department, which will be updated and track progressed every six months.

Michael Eburn
7 December 2009