Finlayson Christopher: Coroners Bill — In Committee 
Finlayson Christopher: Coroners Bill — In Committee 
[Volume:633;Page:4675] 
CHRISTOPHER FINLAYSON (National) 
: 
 Part 4 deals with the appointment and powers of coroners and with the general administration of the coronial system. A very important change introduced by clause 95 is one of the key reforms of this bill which is that there is to be a chief coroner. The appointment is to be for a period of 8 years and it is interesting that that person will not be eligible for reappointment. Hopefully the chief coroner will be the person who develops national standards and who will provide support to other coroners. 
I refer members particularly to clauses 120 and 121. They provide that the chief coroner will be able to issue practice notes. The sorts of things that are contained in the practice notes are set out in clause 120(2). The Justice and Electoral Committee inserted a provision requiring a coroner to have “regard to any practice note … that is relevant to the performance or exercise of the function power or duty.” 
Another key reform introduced by the bill is the introduction of a full-time coronial service. I refer members to clause 98 which provides that coroners are to “… act full-time unless authorised to act part-time”. I ask members to note however that clause 94 provides for the appointment of relief coroners. 
A very interesting and important clause for reasons that will become apparent later in my contribution is clause 97. The clause provides that a coroner “must not undertake any other paid employment or hold any non-judicial office (whether paid or not) unless the Attorney-General is satisfied that the employment or non-judicial office is compatible with the coronial office.” That is perhaps another indication of the judicial nature of the coroner’s task. 
Most of the powers relating to coroners are set out in clauses 107 to 121 and that group of clauses also deals with the immunities of coroners. It is important to note that coroners are to have the same powers privileges authorities and immunities as a District Court Judge who exercises jurisdiction under the Summary Proceedings Act 1957. A coroner “who is not a District Court Judge has at all times the same immunities as a Judge of the High Court.” Again this emphasises the judicial nature of the office. 
It is important to emphasise that a coroner is not a mere administrative tribunal that implements Government policy. One can see that an inquest is a judicial hearing and that coroners have powers that are generally recognised as a mark of a court of record. 
I refer particularly to clauses 108 to 111 because that group of clauses sets out where the coroner may for example call for investigations or examinations or even commission reports. Indeed clause 110 provides that the coroner may issue a written notice that requires a person “to supply information or documents or other things”. 
I will briefly touch on clause 112 which provides for warrants in the event that such written notices are not complied with. Yet these warrants are to be issued by District Court judges. I think that is odd and I raised the issue in the select committee because I think a coroner should be able to issue such a warrant. Again it is interesting to compare that with the United Kingdom legislation under which coroners can do exactly that. Maybe the Minister Rick Barker would like to respond but why he thinks a legally qualified coroner is not up to issuing such a warrant escapes me. The same applies to a warrant issued under clause 116 which relates to warrants for the removal of bodies. 
The expenses and penalties clauses follow the provisions of the Coroners Act 1988 and the 1999 amendment and I am not going to spend too much time on those but I do want to reflect on certain of the transitional provisions. They are contained in schedules 1 2 and 3. I want to say something about schedule 3 as National is very unhappy with clause 3 of that schedule. Clause 2 of the schedule provides that on repeal of the 1988 Act every former coroner vacates office but clause 3 provides that no former coroner is to be entitled for compensation. It is important to look at the scheme of the 1988 Act to show how iniquitous that is because under the 1988 Act there is no doubt about the judicial nature of coronial office. Coroners were for example appointed by the Governor-General under warrant. The coroner’s powers and immunities were similar to those contained in this bill. The removal provisions in the 1988 Act although not as strong as those contained in the Constitution Act in respect of High Court judges nonetheless also emphasised the judicial nature of the office. 
It has been well established that an inquest is a judicial hearing and under the 1988 Act coroners had powers that were generally recognised as I said earlier as marking out a court of record. The National members raised this issue at the Justice and Electoral Committee. The Labour members I regret to say could not see the problem. But the coroners had engaged the services of Mary Scholtens who is a former Deputy Solicitor-General a Wellington Queen’s Counsel and one of New Zealand’s leading public lawyers. She saw there was a problem. She said this was a situation where Parliament should have regard for constitutional conventions surrounding the independence of judicial officers and the potential for the undermining of those conventions. 
Interestingly today all members had the latest Law Commission report on access to court records made available to them. It was reported to the Minister of Justice on 30 June this year. The report emphasised the fundamental importance of judicial independence and stated that that was a core principle of the New Zealand constitution. It also stated that one of the essential elements of judicial independence is that the salary of judges cannot be reduced while they are in office and that they enjoy security of tenure. 
This very interesting report refers to a decision of the Canadian Supreme Court which described three conditions that are essential to judicial independence: security of tenure financial security and institutional independence of judicial tribunals regarding matters affecting adjudication. That is why National is so concerned about clause 3 of schedule 3. 
An alternative view was raised by the Crown Law Office which referred to the decision in  
Claydon 
 v  
Attorney-General 
. That case concerned the lawfulness of the disestablishment without compensation of Employment Tribunal members by the Employment Relations Act 2000 but the case is not relevant to this situation. Coroners are in quite a different position from that of the members of the Employment Tribunal which was what was considered in the Claydon case. They were on fixed-term contracts and had very different powers and functions. 
As Mary Scholtens observed in her opinion to the coroners’ counsel: “The distinction between coroners who are judicial officers and administrative tribunals such as members of the former Employment Tribunal who don’t attract the same constitutional protections is critical.” It is that concern that motivated the National Party to issue its minority view and that is why we introduce the amendment under my name. 
I say to the Minister that we are very disappointed that he has refused to look at this matter closely because it raises some very important issues. As I said in the debate in the second reading it is interesting that in the coronial legislation that is about to be introduced to the United Kingdom Parliament provision is made for moving towards a full-time coronial service yet the Lord Chancellor may make regulations providing for compensation to be given to those coroners who lose office. This is not time-wasting; this is an important constitutional principle. Quite frankly I think that if Sir Geoffrey Palmer who is now a distinguished leader of the Law Commission was still Attorney-General and Minister of Justice he would not have a bar of it. 
I am very disappointed that the Minister is not prepared to look at this issue openly because it is one that goes to the very heart of judicial independence. As we develop the debate in the Committee tonight the Minister will see there are some very real concerns which he simply brushed aside in a cavalier and I hasten to add arrogant manner.