Response to coronial system recommendations falls short for families

Over a year since establishing the Legislative Council Select Committee to inquire into and report on the coronial system in NSW, the NSW Government recently announced its response to the Committee’s recommendations.

The Committee comprises representatives from the Australian Labor Party, the Liberal Party, the Greens, the Nationals and Pauline Hanson’s One Nation, with the Hon Adam Searle MLC as Chair. It was charged with responding to queries, grief and trauma relating to unexpected or unexplained deaths during the coronial process.

The Committee received 66 submissions from sources as varied as unions, religious and health organisations, doctors, and law experts.

In delivering the Committee’s report in April this year, Searle acknowledged that the inquiry  was “long overdue”, especially considering the lack of thorough examination into the coronial jurisdiction since 1975.

The Committee noted there was significant concern at the decline in coronial hearings into workplace deaths over the past two decades.  It was noted that “systemic causes of workplace injuries and fatalities are not routinely identified and addressed.”

In its report, the Committee made 35 recommendations ultimately aiming to strengthen accountability and oversight, requiring government and non-government responses to coroners’ recommendations, and the assurance of more timely and improved support to the families and bereaved persons who are engaged with the coronial system.

Searle reported that these recommendations are “intended to provide a roadmap to ensure that New South Wales has a modern, specialist and better resourced coronial jurisdiction which has at its centre the object of preventing future loss of life, while enhancing the therapeutic and restorative aspects of the jurisdiction.”

The NSW Government response to the recommendations, released on 31 October, announced its support, or support in principle, for only 15 of the Committee’s recommendations. It ‘noted’ the remaining 20 recommendations.

One of the Committee’s recommendations was that the Coroners Court of NSW be restructured along similar lines to the Children’s Court of NSW, as an autonomous and specialist court associated with the Local Court. This was noted, but not taken up.

Palawa woman Lindsay McCabe made one of the submissions to the Committee, in July last year. McCabe tells LSJ, “So many of us hoped this [inquiry] would be the opportunity to change things, to push those reforms through to make it a less violent process for families.”

Yet the hope of positive change has languished, given the lacklustre response of Government to the Select Committee’s report. “There’s been no support from the New South Wales Government,” laments McCabe.

Distressing delays between death and end of inquest

McCabe’s submission highlighted the work of her Honours research at the University of Sydney into the lived experience of Aboriginal families engaged with the NSW coronial system. The submission raised concerns about the prolonged nature of coronial decisions, and the significant impacts of this on the families affected. McCabe noted that the three-to-four year delay most families endure between their loved one’s time of death and the conclusion of the inquest leave them in a state of distress, unable to heal from the trauma of their loss, and without a sense of closure.

McCabe’s research into the NSW coronial process revealed common threads:  delays between time of death and inquest taking place and a lack of communication – though by all accounts this has improved since late 2021.

McCabe tells LSJ, “My research is focused on the experiences of mob with the coronial system in New South Wales. I’ve spent hours talking to lawyers, former coroners, advocates, human rights interveners, and in my PhD research, families that have been through the system.”

McCabe has heard many disturbing stories, not least the account of a family that was unable to get any information about where their loved one’s body was being kept, or where it would be taken to. She discovered that it sometimes takes over 12 months before the family is contacted about a court date, “and so for those twelve months or more they are in a state of limbo, not knowing what is to happen next, or when.”

These delays, in conjunction with a lack of information and poor communication, have the effect of alienating the bereaved.

Last year, McCabe’s article for Alternative Law Journal, “Improving Indigenous family engagement with the coronial system in New South Wales”, also highlighted the issues of inadequate funding, lack of appropriate communication and significant delays between the time of death and conclusion of inquests.

Cultural safety and representation

Lack of cultural safety is an issue. McCabe pointed out in her report that “in the NSW context, there is very little regard given to possible indigeneity of deceased persons and the appropriate ways in which to approach these deaths.”

The Committee recommended that “the NSW Government appoint significantly more qualified First Nations people to the judiciary, including the appointment of First Nations persons as coroners and introduction of a First Nations Commissioner to sit with coroners dealing with First Nations deaths.”

The response from Government was disappointingly non-committal: “the NSW Government notes the importance of NSW courts, including the coronial jurisdiction, reflecting the diversity of its population, including First Nations people.”

The Government response further stated: “Applications for judicial appointments are encouraged from qualified Aboriginal and Torres Strait Islander lawyers. The Government notes that the State Coroner has initiatives underway to support culturally safe processes for First Nations peoples involved in the coronial process, including the First Nations Protocol launched in May 2022 and developing healing mechanisms as part of the coronial process.”

McCabe concedes, “Since the two Aboriginal Coronial Information and Support Program (CISP) officers started [in October 2021], communication has improved.” But she also points out that this is the tip of the iceberg in terms of the representation of Indigenous Australians needed within the coronial system in order for the system to be safe for and responsive to victims and their bereaved.

She says, “One of the most disappointing things about this government response [to the select committee report] is the lack of support to increase the workforce of Aboriginal people in the coronial space because we know that works towards improving people’s experiences in this space. There’s a lack of trust in the system, too, especially when police are investigating deaths that have occurred in police custody. There’s a lack of transparency about what’s going to happen, when and why … when you’ve got police investigating their own, how are we supposed to trust that process?”

Families’ submissions not addressed

The lack of trust in the process was echoed throughout the submissions by victims’ family members and by organisations that provide support to victims. The Government response has fallen short of addressing this, as McCabe sadly acknowledges.

“One of the things we pushed for in a lot of our submissions was having an independent investigative body to investigate Aboriginal deaths in custody. It’s frustrating that every recommendation pertaining to First Nations families has been ‘noted’, not supported. Given that we are having this disproportionate contact with the system, they have to do better to get it right.”

McCabe says that in providing their submissions, and having to articulate their experiences all over again, there has been additional trauma for the victims’ families.

“When I talk to families, I know I’m asking them to re-live one of the most traumatic experiences of their lives, but they do it because they don’t want another family to go through this. What’s so heartbreaking about this government response is, do they even care that families say, ‘this isn’t working, we’re trying to make it better for the next family’? It’s so disappointing on so many levels.”

If the coronial court isn’t funded like the specialist court that it is, nothing is going to happen, McCabe says. “Victoria has a lot less deaths being reported than in NSW but their funding is double, so they’re able to have prevention of death research units and they have a Koorie Engagement Unit that’s more than two people. The short answer as to what’s needed urgently is ‘resourcing’.”

According to the NSW Council of Civil Liberties, between 1991, when the findings of the Royal Commission into Aboriginal Deaths in Custody were handed down, and September this year, there have been at least 500 Indigenous deaths in custody.

Mother of 19-year-old Bailey, Tracey Mackander, wrote in her submission: “I cannot embark on the process of grieving while this inquest hangs over me, and until I get closure for Bailey.”

As she recollects, her son had been placed in an isolation cell the day before his death in November 2019 because he had told a Corrective Services NSW psychologist he was struggling to cope in gaol, and had experienced thoughts of self-harm.

“Although isolation might have been designed to prevent Bailey from seriously harming himself, it did nothing to improve his mental health – in fact, it appeared to make him much worse. While confined in that concrete cell, Bailey was recorded on CCTV and on intercom, pacing, vomiting, gagging, begging and repeatedly pleading, ‘please let me out’. He cried that being in that cell was making his anxiety worse, and at times that he could not breathe.”

Multiple delays in the coronial inquiry into her son’s death exacerbated Mackander’s grief. She largely had to pursue her own legal advocacy, without guidance. At the time of writing her submission, there were still government departments that owed reports and statements to the Coroner.

“I would like to know why families must wait so long for this traumatising process to even get underway, let alone conclude, and why there isn’t a clear referral path for legal advice and representation.

She also recalled, “More than once, inside the court room, I heard lawyers for other parties laughing, talking about their upcoming holidays, joking about how delays in Bailey’s case would cause problems for ‘their diary’. Often, witnesses who played a role in the lead up to my son’s death would be sitting across from me, commenting, and snickering amongst themselves, showing no respect for what was going on around them.”

She was not the only mother to reveal in her submission that she had been unaware of the procedures and norms of a coronial inquest.

Courtney Topic was shot by New South Wales Police in February 2015. She was 22 and, as her mother Leesa recollects, was experiencing a psychotic episode for the first time. Topic also provided a submission, which included these words: “Courtney was not just a beloved daughter, sister, granddaughter, aunty, cousin, work colleague and friend. She was an integral part of our closely knit family. She continues to be so, but sadly we are forced to live without her now.”

Topic tells LSJ, “Courtney was one of four children, our second child. She has an older brother and two younger brothers. Nearly 8 years on, she’s still an integral part of our family. Each and every day, we have to go to work but we carry that loss of Courtney with us.”

She recalls, “When the coronial inquest was complete, there were ten findings. A few years ago, we met with Mick Fuller [then NSW police commissioner] in a private meeting after the findings had been handed down, and we got an apology from him. That was something we wanted and Courtney deserved. He assured us that nine out of ten recommendations had been implemented and the tenth was in the process. That gave us some satisfaction to know. All along, I didn’t want Courtney’s senseless death to be in vain. I lodged submissions to the coronial inquest inquiry to make sure nothing like this happens again.”

Topic has worked with NSW police as part of their mental health training, educating their officers on the people they may come into contact with who have evident signs of mental illness or psychosis, or a history of mental ill health.

“While that’s been incredibly hard, it’s been necessary, and if it saves one life, then Courtney’s death has not been in vain. We’ve been told by officers that many lives have been saved because of what we’ve shared in mental health training.”

Lack of transparency in police investigating

Topic says that after her daughter was shot the subsequent lack of transparency in police investigating police left her family frustrated and confused. The media’s false portrayals of her daughter added to the trauma. It was a further three years until the coronial inquest began in March 2018. This took an initial 10 days, followed by several weeks’ delay. It was only in July 2018 that a final day of evidence was given and findings were handed down.

Topic recalls, “That particular day [10 February] Courtney was shot dead in 41 seconds. If they’d taken a moment and de-escalated, we might not be having this conversation. All the calls [to 000] were for her welfare; not a single call indicated that she was a threat to anybody. She had a knife in her hand, but she was not there to hurt anybody. She’d been to Hungry Jacks to buy a frozen Coke, she’d paid and taken her change and walked out. We learned through the coronial inquest that it was her first psychotic episode … She had no criminal history, had never even had a parking ticket, but nobody asked if she was okay, they just shot her dead.”

Topic reflected that “the police officers didn’t take into account that they killed an innocent person. That added to my trauma completely. It was hell, it was beyond cruel. The neglect of our feelings by the perpetrators was very difficult. When the findings were given in July, no police officers turned up, or at least none in uniform that I saw. It felt like a kick in the guts, as if they were saying ‘your daughter is not important’.”

The committee report called for the NSW Police Force (NSWPF) to improve its training of police officers on coronial processes, including regular, comprehensive and specialist training for investigative police, and specific training for officers in the preparation of high quality and timely coronial briefs of evidence.

The NSW Government responded that the NSWPF Specialist Advocacy Unit and the Coronial Case Management Unit are implementing and facilitating comprehensive and specialist training for investigative police on coronial processes. The NSWPF is also currently developing online modules and resources for probationary constables and intends to hold conferences on the coronial jurisdiction for investigators and regional police prosecutors.

Of her submission, and her ongoing work to advocate for coronial system reform, Topic says, “There’s systemic change that needs to happen, and if I can make a positive change and lives are saved, then that’s what I’ll do.”

Read more

Committee Report and recommendations

McCabe’s research into the NSW coronial process 

About the Coronial Case Management Unit