Legislative Council, Tuesday 26 October, 2021

Ms FORREST question to LEADER of the GOVERNMENT in the LEGISLATIVE COUNCIL, Mrs HISCUTT

I need to give some historical background to my question. In January 2015 the Coroner's Office failed to recognise Ben Jago as a deceased male partner's senior next-of-kin resulting in Ben not being able to see his partner's body and being forced to negotiate with his partner's family to attend the funeral as a friend. The Coroner's decision was based on a misunderstanding of Tasmania's Relationship Act. Ben Jago subsequently lodged a discrimination complaint with Equal Opportunity Tasmania against the Coroner's Office. The Anti-Discrimination Commissioner found a prima facie case but the Coroner's Office asserted immunity from the Anti-Discrimination Act before the Anti-Discrimination Tribunal.

Early this year, the Supreme Court upheld the Coroner's immunity thus all staff at the Coroner's Office - not only magistrates - will be able to discriminate on any grounds in the employment of staff and the provision of services. The Supreme Court decision has resulted in no resolution and ongoing distress for Ben Jago.

In 2011 the Coroner's Office also failed to recognise that another man in a same sex relationship was a senior next-of-kin to his deceased partner. The bereaved partner also made a complaint to the Anti-Discrimination Commissioner. The complaint was resolved in conciliation, with the Coroner's Office agreeing to an enforceable order that it would undertake reform of its policies and procedures. During Ben Jago's Supreme Court case, the Coroner's Office revealed that it had not undertaken any such action and had no intention to.

These two cases have resulted in harm to the partners concerned and anxiety among LGBTIQ + Tasmanians about whether their legal rights will be respected by the Coroner's Office. That is the history and the reason the question is being asked.

Will the Government, through the Attorney-General:

(1) Enforce the order against the Coroner's Office so that it will reform its policies and procedures as agreed to in 2011?

(2) Amend the Coroners Act to make the process for determining senior next-of-kin clearer, more transparent and less open to abuse as well as providing parties with an express right of appeal?

(3) Amend the Coroners Act so that non-judicial staff must abide by the Anti Discrimination Act?

(4) Provide a government apology to Ben Jago for the pain he has endured while he has sought to have state law recognised by the Coroner?

(5) Arrange for the cremation and interment of Ben's late partner in Hobart as was his wish - that is his partner's wish; and

(6) Consider any further actions?

ANSWER

Mr President, I thank the member for Murchison for her question. It is quite a lengthy answer which I will read out because I found it very interesting. Following a recent meeting with Mr Jago and Equity Tasmania in July 2021, the Attorney-General has directed the Department of Justice to consider and provide advice for consideration on options for any further improvements or law reform that may be required to address any potential discrimination regarding same-sex partners through the coronial process. Once this advice is received and considered by the Government any proposal for legislative change would be subject to consultation prior to introduction to parliament.

To your specific questions.

(1) The history of Mr Jago's complaint is one of discrimination against the Coroner's Office on the grounds that it failed to recognise him as the senior next of kin for his deceased partner. The senior next of kin is the person who has specific rights under the Coroners Act 1995. These relate to being notified of a decision:

• Not to hold an inquest - sections 26 and 26A
• Requesting a coroner not to direct that an autopsy be performed - section 38
• Being notified of an exhumation directed by the Chief Magistrate - section 39
• To request the deceased's name not appear in an inquest report - section 57.

The senior next of kin's rights arise later in the potential Coronial process when, in the case of Mr Jago's part, his death, were not engaged and were of limited practical relevance. It is important to note that none of these statutory rights legally affect a person's standing regarding other matters, including legal or family disputes, regarding the ability to view a deceased person's body, the administration of an estate, or to arrange or attend a funeral, as deeply important and distressing to the individual as these matters are.

The Attorney General has met with Mr Jago to offer her condolences and discuss his concerns directly. As part of this meeting, the Attorney has assured Mr Jago that the Coroners Court is now fully aware of the legislative and procedural requirements for appropriate determination of senior next of kin and is respectful of LGBTIQA+ Tasmanians and their rights.

There are multiple occasions each year in which a same sex partner is recognised as the senior next of kin in coronial matters. There is no legislative or other barrier to those determinations, which are made when the nature of the relationship satisfies the relevant criteria. This process is consistent across all categories of relationships, whether they are same sex or heterosexual, so long as they meet the requirements of being a spouse. Spouse is not gender identified and is defined in section 3 of the Coroners Act as 'includes the other party to a significant relationship within the meaning of the Relationship Act 2003'.

Section 4 of the Relationship Act provides, 'a significant relationship is a relationship between two adult persons - (a) who have a relationship as a couple; and (b) who are not married to one another or related by family'. The Relationships Act further provides that if a significant relationship is registered under Part 2, proof of registration is proof of a relationship. The Act also provides that if a significant relationship is not registered under Part 2, in determining whether two persons are in a significant relationship, all the circumstances of a relationship are to be taken into account, including specified matters such as duration and nature of relationship, common residence, property ownership and commitment to a shared life and so on.

It has been confirmed with Mr Jago that the changes that were being sought have occurred since his experience in 2015. A review has occurred to ensure that information regarding processes and legislation applying to the Coronial Division is comprehensive, accessible and available via the website and in hard copy if requested. Communication processes have also been improved between coroners, their associates and families or next of kin regarding coronial processes.

The Tasmanian Coronial Practice Handbook and a Guide have also been extensively updated. The handbook and guide called - The Coroner's Court: a Guide for Family and Friends, were both updated in 2016 and contain detailed information on the senior next of kin. They also clearly explain that the definition of 'spouse' in the Coroners Act includes the other party to a significant relationship as defined in the Relationships Act 2003. Both documents are available on the Court's website, which itself has web pages to similar effect.

These materials also clarify the role of the senior next of kin, being primarily to have a single person acting as the point of contact in order to keep family informed and call on them for any required further information.

They also explain that the Coroner's decision on who the senior next of kin is has no bearing on legal proceedings outside the Coroners Court. As previously mentioned, examples include probate or estate issues or disputes, or other practical matters such as funeral arrangements between family members or disputes about being able to visit a grave.

For instance, if there is a disagreement about to whom the body should be released, disagreeing parties are required to apply to the Supreme Court under probate law. As such, the role of senior next of kin under the Coroners Act has no bearing on this process.

The materials also provide information on the process for disputes about senior next of kin determinations, including how to apply to the Coroners Court and the ability to provide further or supporting information.

(2) The Attorney-General has directed the Department of Justice to consider and provide advice on the request by Mr Jago and Equality Tasmania on options for any further improvements or law reform that may be required to address any potential discrimination regarding same-sex partners through the coronial processes.

Once this advice is received and considered by the Government, any proposed legislative change will be subject to consultation prior to introduction to parliament.

(3) The immunity provisions in question in this matter include section 67 of the Coroners Act that has the effect of protecting coroners and 'a person acting under any authority given under the Act' against legal proceedings, unless the person was acting in bad faith. This is a standard immunity provision for statutory officers to ensure they are not influenced by potential legal proceedings filed against them when undertaking their functions and duties in accordance with the law. However, this immunity is not broad enough to mean that the Coroners Act permits discriminatory behaviour that is deliberately and intentionally engaged.

It is crucial there is no undue or outside influences impacting the independent, impartial determinations of our courts and tribunals. As a fundamental principle of our democratic system of government, it would take significant justification to consider encroaching on the separation of powers, as is being proposed.

Accordingly, the Government does not consider any change to the Coroners Act appropriate in relation to this proposal.

(4) The Attorney General has met with and extended her condolences on behalf of the Government to Mr Jago. As addressed earlier, because the legal proceedings address jurisdictional matters of law which necessarily brought these legal proceedings to an end, the factual allegations were not required to be decided by the Tribunal or the Court.

The government sympathises with Mr Jago regarding his concerns and experiences, and recognises the distress that not only the coronial process but subsequent Tribunal and Court processes in turn have caused. Action has been taken to ensure improvements have been made and, as previously stated, the Attorney-General has directed the Department of Justice to consider and provide advice for consideration on options for any further improvements or law reform that may be required to address any potential discrimination regarding same-sex partners through the coronial processes.

(5) The Government understands that Mr Jago sought for his partner's body to be exhumed from Ulverston and buried or cremated in Hobart.

This is a very personal matter effecting Mr Jago and his partner's family. There is a narrow statutory power under section 39 of the Coroners Act for the Chief Magistrate to order exhumation on the basis of a reasonable belief that it is necessary for an investigation of a death. As no further investigation is required, it is not possible for that power to be used in this instance. Again, while the government sympathises with Mr Jago, this is personal matter for him and Mr Lucas' family, in which the Government is not able to intervene.

(6) Is covered with the above answer.