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Justice and Related Legislation Miscellaneous Amendments Bill 2022

Cassy O'Connor MP

Cassy O'Connor MP  -  Wednesday, 19 October 2022

Tags: Justice, Legislation

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Speaker, I thank the Attorney-General for bringing forward the Justice and Related Legislation Miscellaneous Amendments Bill 2022.

As is pretty standard with a justice miscellaneous bill, this bill deals with a range of matters. Often, justice miscellaneous bills are tidy-up bills for making sure legislation is consistent, making sure the entities that help to administer justice - for example, the DPP - are able to identify where fixes in legislation are needed. They come in on an omnibus bill like this.

Usually, our justice spokesperson, Dr Rosalie Woodruff, would take us through this bill, but it does speak to a number of portfolio areas for which I have responsibility and a great passion, so we have agreed that I will take care of this bill today.

As outlined by the Attorney-General in her second reading speech, this amendment bill deals with matters relating to clarifying the offence of bestiality.

It delivers amendments to the Births, Deaths and Marriages Registration Act 1999, recommended by the Tasmanian Law Reform Institute's Legal Recognition of Sex and Gender, Final Report. This is one of those areas of public policy where, in the past few years, we have seen very significant change and improvement. We do not need to go back into that debate on the floor of the House, or some of the tensions that were in that debate, but I think we can all agree that the changes that were made - now reflected in the change to the long title of the Births, Deaths and Marriages Act - have made people who are transgender or intersex with a variation of sex characteristics much more able to express their true selves, be accepted for who they are, and who they identify as in Tasmanian law.

The change in the long title is, in itself, profound and it is quite poignant to see legal language expressed in this way. The long title amendment says that:

The long title of the Principal Act is amended by omitting -

These dry words, Mr Speaker:

"uniform legislation in relation to the registration of births, deaths and marriages and to provide for the rights of persons who have undergone sexual reassignment surgery" … [OK]

As we know, that provision and the way the act previously operated caused enormous trauma and compounded the trauma for transgender people. It required people to undergo sexual reassignment surgery before they could change their birth certificate and be recognised for who they are. Instead, the long title will read:

… "the registration of births, deaths and marriages and to provide legal recognition for trans and gender-diverse Tasmanians and those with intersex variations of sex characteristics" [OK]

I will come back to that question of a definition for 'intersex variations of sex characteristics' shortly.

The bill we are debating today also makes amendments to the Coroners Act relating to the provision of information to senior next of kin and interested parties. Ms Haddad's contribution on this question was very moving. Ms Haddad, you put it beautifully. So much of this change we are debating today has been about making sure that what Ben Jago went through some eight years ago never happens again to any other person and that, as Ms Haddad said, we recognise LGBTIQ+ relationships are just as valid and equal, and need to be respected by the law.

On behalf of the Greens, I sincerely apologise to Ben Jago, express my sorrow for what he went through, and thank him for being such a strong advocate for these changes, despite his pain, to make sure no one ever again endures what he went through.

The amendments also deliver requirements for certain information to be provided to the Office of the Director of Public Prosecutions by the Parole Board. In the briefing, I was a bit surprised that that does not already happen. There are amendments to make sure that we have a fairer, more accessible system for requests to vary payment conditions for the monetary penalties and enforcement service.

We also have amendments that provide for an extension of the period for complaints related to negligent driving causing death or grievous bodily harm, changing that from six to 12 months, recognising the complexities of some of these situations.

It is the amendments to the Coroners Act, in particular, that have sparked the interest of stakeholders in this space. I pay attention to justice miscellaneous bills as they come through and it is quite unusual for them to have such interest from key stakeholders. I am sure the Attorney-General and Ms Haddad have read in detail the submission made by Community Legal Centres Tasmania, which is an outstanding submission. It is the foundation for the majority of the amendments we are putting forward today and clearly Ms Haddad too.

I want to go to what the submission says about the amendments to the Coroners Act. Perhaps, in her reply, the Attorney-General could address the question of appeal rights for decisions the coroners make about senior next of kin. We made a decision not to seek to codify appeal rights because we believe that capacity exists. It is about the provision of clear, plain English information to people who come into contact with the Coroner's Office on the death of a family member and loved one. The CLC submission states that:

The case of Jago v the Anti-Discrimination Tribunal was concerned with Benjamin Jago, a homosexual man who, despite being in a relationship for five years, was not recognised by the Coroner as his deceased partner's senior next of kin in the days after his partner's death. The complaint of discrimination was dismissed by the Anti-Discrimination Tribunal then the Supreme Court on the basis that the Coroner was immune from legal proceedings.

The CLC says:

We strongly support the Government's intention to ensure that Benjamin Jago's experience with the Coroner's Office does not occur again.

The bill seeks to achieve this aim by clarifying that upon the investigation into a death, the coroner will provide information to the senior next of kin and any other person who has an interest in the investigation. The bill sets out that any general or specific information specified in the regulations will be provided to both the senior next of kin and other persons with an interest in the investigation.

The submission says:

Information that we believe should be included in the regulations includes the purpose of the coronial investigation, applying for senior next of kin and the rights of the senior next of kin.

This is where there is possibly a difference of views across the Chamber. The submission says:

However, we strongly recommend that the Coroners Act 1995 is further amended to explicitly make clear that a party aggrieved by the senior next of kin decision may appeal to the Supreme Court. Currently the act clearly sets out that persons who have a sufficient interest in the findings of the coronial investigation can appeal to the Supreme Court on a range of grounds, including seeking the reopening of the investigation; that an inquest be held; an autopsy be performed, an autopsy not be performed; that the body of the deceased person not be exhumed; that there be an inquest in relation to a fire or explosion; that there be an order that all or any of the findings of an inquest are void; and the return of an article, substance or thing in the legal possession of the Coroner.

This is where the Greens are hoping the Attorney-General can provide a very clear step-by-step response to the CLC's request that we codify appeal rights in the Coroners Act. The submission says:

While it is acknowledged that parties are able to appeal senior next of kin status to the Supreme Court, the act is silent and parties would only be aware of their right to appeal under the Judicial Review Act 2000 if they had engaged a lawyer -

which, as we know, can be a very expensive process.

Given the heightened emotional state of a person's grieving, the loss of a love one, while a coronial investigation takes place and the rights of appeal, already set out in the act for other decisions of the Coroner, it is imperative that parties are made aware, through the act, of their right to appeal. We therefore recommend that section 3A of the act is amended to clarify that an aggrieved person may appeal the senior next of kin decision to the Supreme Court.

As I said earlier, following our briefing with staff from the Justice department - and we are very thankful for that briefing - we made a decision not to proceed with an amendment to codify appeal rights because we believe it is more than anything about communication and the provision of plain English and accessible information to bereaved people.

I thank stakeholders for working with us on these amendments and the bill, as well as the Attorney-General's office and department for the briefing on Monday, which was very helpful. There were some matters raised in that briefing that we are quite pleased with and we have a couple of matters we would like you to confirm, Attorney-General, so they are on the record.

In the briefing we were advised that the regulations attached to these changes are likely to occur this year and that they would be developed in consultation with stakeholders. It is also our understanding from the briefing that it is intended that the regulations will prescribe that information about appeal rights contained in the Relationships Act 2003 will form part of the information provided under the new section 58B. Can you confirm, Attorney-General, that it is your intention for the regulations to be developed this year, for key stakeholders, including Equality Tasmania, to be consulted as they are being developed and for the details of appeal rights to be prescribed in those regulations?

As I said earlier, we understand from our briefing that appeal rights very much do exist in the Relationships Act 2003, but I am sure, minister, you can understand why interested persons are aggrieved by the lack of available information regarding appeal rights. Can I ask you as Attorney-General to convey the expectation, or at least to request the court that more specific detail in relation to appeal rights be included on their website?

Another matter that has been raised by stakeholders is the use of the term 'intersex' in the amendments to the Births, Deaths and Marriages Registration Act 1999. I acknowledge that on this matter, the minister has engaged with us in genuine good faith, since we waived it during debate on the Youth Justice Amendment (Searches and Custody) Bill 2022, and we were very thankful to receive from the Attorney -General -

Ms Archer - I don't mind if you read it.

Ms O'CONNOR - Good, I was going to. It is a good letter. I am not going to read it to do anything other than make a point about the work that you committed to doing. At the moment, as we know, the term 'intersex' is potentially not only not scientifically correct but potentially pejorative. We wrote to the minister and Attorney-General seeking an update on the status of the development of a framework for sex, gender, variations of sex characteristics and sexual orientation and subsequent potential legislative amendments that would be required to update the definition of 'intersex'.

The Attorney-General forwarded the draft framework for data categories and collections on sex gender variations and sex characteristics and sexual orientation, and the information sheet. This information, the letter says, was prepared by the Department of Justice working with the LGBTIQ+ community through the departments and LGBTIQ+ community reference group. I might pause there for a moment and say how terrific it is that this reference group is established - we re-established it in government during 2010-14 - and how vital it is that government, in developing policy and law that impacts on the lives of LGBTQI+ people, has this ready and willing source of advice and insight which will make our laws stronger and fairer.

The Attorney-General says the amendment in the soon-to-be-tabled justice and related legislation is in the form recommended by the TLRI in their legal recognition of sex and gender final report. She says:

Although I support the making of appropriate amendments to improve references to variations of sex characteristics, in light of the need to finalise the framework and further consider the matters noted above, I do not propose to advance legislative amendments to definitions such as 'intersex' in the above-mentioned bill.

As 'intersex' is a term used in several acts, including the Anti-Discrimination Act 1998, I believe it is appropriate to make the TLRI recommended changes to the Births, Deaths and Marriages Registration Act now, and with the release of the framework in the near future my department will develop a proposal in relation to the consolidation of terminology across all relevant acts for final consultation.

And there is a commitment to provide us with information as soon as it is available.

I see that that is a commitment from Government to update and improve that terminology. We have a level of confidence, notwithstanding some of the reflexes of this Government to bring in, for example, legislation which has no evidence base such as mandatory minimum sentences. I regard the current Attorney-General - and I do not mean to be matronising here, Ms Archer - as a thorough and meticulous Attorney-General with a reasonably strong reformist streak, so we have some confidence that definitions and terminology and legislation will indeed be modernised as they should be.

Taking the Attorney-General on good faith, this time we did not feel the need to bring forward amendments that may be slightly different from the final terminology that will have been developed based on a broader consultation than our resources will allow us to undertake. We do, however, suggest it may have been better to wait for a future amendment bill around these definitions before advancing this particular recommendation and amending the long title. That said, I think apart from the word 'intersex', the long title change is a significant improvement, and this might have prevented some consternation in the community. Could you please provide an update to the House in your summation for the purposes of informing all of those persons that may have an interest in the matter?

I will go briefly to our amendments, which I must say are quite similar to Ms Haddad's. The first, as is the first of Ms Haddad's amendments, is to amend section 3 of the principal act. It is an interpretation relating to the definition of 'spouse'. The second amendment is to clarify the meaning of 'senior next of kin', which amends section 3A of the principal act by renumbering subsection (1) and inserting the following subsection after subsection (1):

A person making a decision under this act as to whether a person is the senior next of kin of a deceased person must not discriminate against a person on the grounds that the person:

(a) is in a same-sex relationship; or

(b) is in a significant relationship within the meaning of the Relationships Act 2003 with another person, but is not married to that person; or

(c) is in a significant relationship within the meaning of the Relationships Act 2003 with another person but the relationship is not registered under that act.

I guess in many ways that is a doubts removal amendment proposal.

Our third amendment is a proposed amendment to the Coroners Act which would allow a bereaved person to apply for an autopsy report. This comes back, I am sure, to the experience of many bereaved people who want to have a deeper understanding of the cause of their loved one's death. This was highlighted to us by Senator Janet Rice, my federal colleague, whose partner Penny died not that long ago. Janet Rice wanted a copy of the post-mortem report because Penny's death was quite sudden and really very unexpected. Senator Rice asked for a copy of the report - and this was her rationale:

… to uncover and then share information about the circumstances of her death, in order to learn from it and the specific circumstances for our sons to be informed about any potential genetic considerations and, more generally, in terms of scientific learnings, in Penny's circumstances, any potential links between her medical condition and her death.

There is no current legislative requirement that the coroner provide a post-mortem report even to a general practitioner, but in practice it appears that if a senior next of kin requests a copy, the coroner will provide a copy to the general practitioner who will summarise the report for the senior next of kin. I regard that as quite paternalistic in a way. As the senior next of kin, in Janet Rice's case she is a very intelligent, educated person who would have no problem reading a medical report. It does not make sense and there is no reason why the senior next of kin should not receive the post-mortem report on request. If they cannot understand the contents of the report, they should ask a medical practitioner to interpret the language being used. More importantly, being provided with the report provides the senior next of kin with a detailed explanation of the deceased's cause of death and a better understanding of any underlying medical issues that may be relevant for family members.

CLCs, again, recommend that the Coroners Act is amended to clearly specify the right of senior next of kin to receive a copy of the post-mortem report. An example is found in the Australian Capital Territory's Coroners Act 1997, section 32. That is the background for our third amendment.

The fourth amendment relates to this question of codifying appeal rights. It is simply an amendment to clause 9 in the bill, which is a proposed new section 58B to ensure information on the rights to appeal against decisions under this act. The issue of appeal rights is one we examined very carefully. We had a conversation with the Office of Parliamentary Counsel. My deep thanks to the Office of Parliamentary Counsel and Robyn Webb for the amazing work she does and the work she has done with Thomas in our office in developing these amendments.

On the basis of those conversations and our examination of the existing framework, we decided not to proceed with the appeal rights amendments. I appreciate where Ms Haddad is coming from and we spent a lot of time exploring an option to include an appeal mechanism clause. I know this proposal has, in part, come from stakeholders who have asked for existing appeal rights to be codified in the Coroners Court Act 1995. Our concern with the amendment Ms Haddad has put forward is that I am not sure that it does this. It potentially establishes new appeal rights which I am not sure are the same as the existing ones.

Our understanding is that the relevant existing appeal rights are within the Relationships Act 2003, as well as potentially some common law appeal rights. I also note that the objective of codifying these appeal rights is to ensure that people who do not have easy access to a lawyer are aware that these rights exist. That is very important. That is where we can potentially deal with it in a regulation and making sure the information that is provided by the Coroners Court is accessible and in plain English.

With the greatest respect to the stakeholders, who we admire very much, we believe that the approach of actively providing details of appeal rights to people, coupled with further details being made available on the Coroners Court website, may better achieve the objective than putting a clause in the legislation. A person without a lawyer is far more likely to find materials directly provided to them and plain English information easily found on the web than they are likely to find an interpretive clause in the Coroners Act.

When we were seeking to have a similar amendment drafted, our advice was that without a process of consulting with relevant expert groups and stakeholders, the introduction of new appeal provisions is fraught. I am also aware that the provision would allow for a broad range of appeal, far outside the scope of the issues raised in the relevant Coroners Court decision. It may well exist but, so far, we have not seen - I have seen evidence that there is a broader issue in appeal rights that requires address but it has not been suggested to us that, outside of the case in question, the dispute resolution process is dysfunctional.

I hope that when we get into the Committee stage, which will be next week, Ms Haddad could address that question. We are concerned that codifying appeal rights through the mechanism of the amendment Ms Haddad has put forward might potentially weaken a broadly functional dispute resolution process with a highly litigious one that could, for example, favour whichever party has more disposable income to fund a court dispute.

Most of the conversation today has been about the changes to the Coroners Act. There are a number of other amendments in this omnibus bill. We support the bill. I was surprised that there was no accurate or contemporary definition of bestiality. That will be fixed. It relates to a specific case.

Ms Archer - We find out these little things when there are cases.

Ms O'CONNOR - It is not the kind of thing you think about every day, hopefully.

Ms Archer - No, it is not the kind of thing you want to think about every day.

Ms O'CONNOR - No, that is right. The amendment today relates to the case of Elnami v Tasmania, where the accused sought an order that he be discharged from the indictment on the basis that the crime of bestiality was only committed if there was penetration with a penis by, or of, an animal. In his judgment, Justice Estcourt found that because parliament had not expressed a clear intention that bestiality be construed to mean anything other than penetration by a penis of/or for an animal, the 2017 amendment was inconsequential.

The CLCs say the amendment proposed in the bill is supported because it clarifies parliament's intention that sexual activity of any kind between a human being and an animal that is not for a genuine veterinary, agricultural or scientific research purpose will amount to bestiality.

There was the Criminal Code Amendment (Sexual Assault Act) 2017, which amended section 122 of the Criminal Code Act by replacing the crime of 'unnatural crimes' with the crime of 'bestiality'. The amending act also broadened definition of 'sexual intercourse'. Perhaps, the Attorney-General could talk to us about the exceptions provided for in the amendment bill relating to 'genuine veterinary, agricultural or scientific research purposes'. For example, if someone is a dog breeder that does not necessarily fit within 'veterinary' - they are a dog breeder out in the community but they are not a vet. So maybe flesh that out a bit.

Again, thank you Attorney-General, for bringing this bill forward. We will be glad to support it and hope we get some support for our amendments.