Read into Hansard on Thursday 19th March 2015
CORONERS AMENDMENT BILL 2014 (No. 25)
Clauses 1 to 4 agreed to.
Clause 5 –
Section 3A inserted – Meaning of senior next of kin
Mr VALENTINE – Mr Chairman, I thank the honourable Leader for clarifying the meaning of clause 5 which inserts a new section 3A with regard to spouse but I still have a concern with proposed section 3A(d). My concern is in two parts. In some families there may be dissent between children for various reasons. Not all families have members who communicate and some actively do not. It could build in some complication by simply saying a son or daughter.
The main part about that phrase ‘a son or daughter’ is to do with discrimination. If you recall last year we passed an amendment to the Anti-Discrimination Act which basically says that we cannot discriminate against various aspects and one of them is intersex, and ‘son or daughter’ does not cover people who do not identify as either of those. It may be that this was drafted prior to that and I can understand that. I wonder whether the Government would consider an amendment.
I would like to move an amendment to proposed section 3A(d) that if the person referred to in paragraph (a), (b) or (c) is not available, it would be the most senior available child of the deceased person, if the child has attained the age of 18 years. That would overcome any discrimination in terms of gender but it also overcomes the problem of stipulating that it is the senior child, if there is going to be a child at all who provides consent, if it is consent that might occur as a result of the use of this term. I am interested to hear what the honourable Leader has to say about that before moving an amendment.
Dr GOODWIN – I thank the honourable member for Hobart for his question. It is true that this bill was drafted prior to those changes. This is one of these bills that has been around for a while and was started under the previous government. We need to take some advice on this and probably consult. What I am happy to do is take your suggestion on board because we are not changing anything in the wording of this current paragraph that is not in the existing legislation.
I will seek some advice from the Anti-Discrimination Commissioner about what would be an appropriate change of wording and we can include that in a justice miscellaneous bill if that would be satisfactory. We have one of those coming up.
Mr VALENTINE – That would be satisfactory if it was not likely to take a significant amount of time. It is not likely to, is it?
Dr Goodwin – No.
Mr VALENTINE – I am sure you can appreciate the concern I have in that regard.
Mrs HISCUTT – Leader, I have been involved with cases disputing who is the spouse and who is not. I know you made it clear, or it appeared to be clear, in your second reading speech, but I need to go through it one more time.
Paragraph (b) says –
If the deceased person, at the time of his or her death, is survived by more than one person who would qualify as the deceased person’s spouse, the last person to do so qualify.
What is the exact definition of ‘spouse’? I know that if you live with a person for a certain length of time you become their legal spouse. I cannot see how you can have two spouses – either you are or you are not. If there had been a registered marriage but then you have been in a relationship with another person for 25 years without registering a marriage, is that a spouse? Then if that marriage is going through difficulties and one partner is forming a relationship of six weeks, does that become a spouse? Who has the claim on these things?
Dr GOODWIN – The definition of spouse in the Coroners Act says:
Spouse includes the other party to a significant relationship within the meaning of the Relationships Act 2003
Then you go to the Relationships Act to find what the definition of a significant relationship is. I will read from section 4 of that:
For the purposes of this act 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.
and then there are provisions that go on to talk about what you have to take into consideration in determining whether two persons are in a significant relationship. That includes the duration of their relationship, the nature and extent of common residence, whether a sexual relationship exists, issues around the degree of financial dependence, ownership of property, and care and support of children. There is a whole range of factors taken into consideration in determining whether someone is in a significant relationship with someone else.
If there are any matters of dispute, then a court will determine whether such a relationship exists. So there is a process for that to determine (a) whether someone is in a significant relationship; and (b) in the event of any dispute over that. It is not something you can automatically answer on a case-by-case basis because it depends on the circumstances of the case. If there is a dispute, then it will have to be resolved by the court.
You can have more than one spouse, which complicates things, and that is why we need to have this provision.
Mrs HISCUTT – In section 3A(i) it says:
If the deceased person is an Aboriginal person, a person who according to the customs and tradition of the community or group to which the person belongs, is an appropriate person.
That does not mean that an elder of a particular clan can take over if there is someone under (a), (b), (c), (d), (e), (f), (g) or (h)? Do I understand that correctly?
Dr GOODWIN – These provisions are drafted in such a way that there is a hierarchy or a priority. So you start off at the top with the spouse and work your way down. New paragraph (i) is already contained in the Coroners Act but it is the existing paragraph (f). So there is no change in that sense. The first cab off the rank is the spouse and then you work your way through the list.
Mr VALENTINE – I draw attention to paragraph (g) under the same circumstances as I raised before under (d). It would be the most senior sibling, or whatever.
Clause 5 agreed to.
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 agreed to and bill taken through the remainder of the Committee stage.