Ardern Jacinda: Coroners Amendment Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Coroners Amendment Bill — In Committee[Sitting date: 07 June 2016. Volume:714;Page:11761. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour):I want to come back to two amendments that I was not able to address in my first contribution. The first sits within Part 1 and it talks about the definition of those areas where there is jurisdiction for the coroner to investigate a death in official custody or care. This issue was not something that was discussed in great length directly by the Justice and Electoral Committee but we—inadvertently I think—stumbled across some definition issues when we were debating deaths in custody as they relate to those who are under the care of Child Youth and Family (CYF) in a residential facility.The discussion that was had was why when going back—and this arose off the back off the bill as it stands in Part 2—it was changing the criteria to allow the coroner greater discretion around whether or not a death in custody is an inquest or an inquiry. I had a selection of coroners’ reports around deaths in CYF’s care which I had requested under the Official Information Act on a previous occasion to better understand some of the child protection issues we have here in New Zealand. Within that stack it became clear to me that there was a real range of areas in which a coroner had opted for an inquest over an inquiry and I found that very confusing.My understanding was that currently it is always going to be an inquest. Why was it that we had so many examples of coroners’ reports that were indeed inquiries for children who were in CYF’s care? The answer lies in Part 1 because in Part 1 clause 7(1B) states that “In section 9 replace the definition of death in official custody or care …” and then it has the definition and that states “a child or young person who has been placed in a residence within the meaning of section 2(1) or 364 of the Children Young Persons and Their Families Act 1989 (whether or not the death occurred in the residence):”. Then it goes on to a description of “a child or young person who—(i) is in the custody or care of an iwi social service a cultural social service a residential disability care operator or the director of a child [youth] and family support service” and so on.So clearly the indication here seems to be a young person who is in a residential facility of some description whether or not that is operated directly by CYF or is contracted to operate by CYF. My question is: why does the definition simply not state “a child who is under the care of the chief executive”? Because that would then cover those who are in residential facilities via perhaps youth justice or those in foster care whānau care or kinship care or home—perhaps not Home for Life because they are not technically under the care of the chief executive. If we had had that broader definition within Part 1 simply stating “a child who is under the care of the chief executive” under the definition of the Children Young Persons and Their Families Act we would have had greater consistency in the way that we treated those children and we would not then have had that discretion between coroners who were conducting inquests and inquiries.As it happens actually that is now slightly null and void because this bill is giving that discretion regardless of whether a child is in residence or kinship care or so on. Our hope would be that we treat all children in care the same. I would wager that it is in the public interest for an inquest to be held any time a child is harmed to the point of death when they technically come under the jurisdiction of Child Youth and Family regardless of whether they are in a residence or not—regardless of whether or not they meet that current definition. On Part 2 we will argue that we should not have that discretion around inquest and inquiry—if you are in custody it should be an inquest—but I still have that definitional issue on Part 1 around whether even then every child who is in the care of the chief executive is covered by those provisions. I would be interested to hear from the Minister if I have wrongly interpreted that definition.The reason that I extrapolated that was that in some of the departmental—[Bell rung] Mr Chair?The CHAIRPERSON (Lindsay Tisch): I call Jacinda Ardern.JACINDA ARDERN: I will be brief.The CHAIRPERSON (Lindsay Tisch): She will be brief. You will be next the Hon Amy Adams.JACINDA ARDERN: Sorry Minister but I will be very brief. I will add one more statement to the mix. The reason I raise that issue is that when we were having this debate the advice that we received from the department did point to the definition of official custody in care in the Coroner’s Act as the reason for those differences in the reports from the coroners that I was referring to in the first part of my contribution.My second very quick reference that I want to make really just highlights what is I think an unfortunate amendment that was made to the original bill as it was drafted by the Minister and it was touched on earlier: the role of pathologists. I found this a particularly compelling piece of evidence that was provided to the Justice and Electoral Committee and it relates to clause 18 which says: “Section 27 amended (Family may request pathologist’s report on post-mortem)”. What it really intended to do was narrow down the range of family members who can receive a pathologist’s report to immediate family but what we ended up having quite a substantive discussion in the select committee about was another section that was being inserted after section 27(1) and that was as originally drafted: “A pathologist may at the request of a member of the dead person’s immediate family contact the family to explain or answer questions in relation to the pathologist’s report.”We had those from the National Forensic Pathology Service strongly welcome the ability to be able to communicate with family members directly something that was informally happening within the system—pathologists came in and gave very compelling evidence that they were having those kinds of discussions with families but without a statutory footing. They pointed out countless examples where they literally had family members there waiting and how awkward it is for a pathologist to say they cannot speak to the family or cannot communicate. In practice that was happening anyway so they welcomed that change.However at the select committee we had the Chief Coroner submitting that the clause as drafted was allowing direct contact that they felt needed to be facilitated by the coroner. Their view was that they had immediate responsibility for the final outcome and therefore that it would raise difficulties for them if suddenly there was some statutory footing for the pathologists. The Chief Coroner submitted that clause 18 in its entirety should be deleted and that everything should be facilitated via the coroner.The midway point that the select committee eventually came to—although it is the view of Labour members that the original drafting was correct—was to insert clarification that essentially means that all that communication must still go through the coroner. So what we might have is what will seem like a farcical situation: a pathologist saying to a family member that they cannot relay any information to them until they are able to contact the coroner and then communicate. You can imagine in those stressful situations how difficult that would be for both the family and the pathologist. So I believe the original drafting was right. I believe it put the informal practice on a statutory footing and I thought the pathologists’ evidence was compelling. It is disappointing that that has been redrafted and I would be interested in hearing the Minister’s views on that also.