Coronial Investigation of 29 Level Crossing Deaths – Ruling on the Interpretation of Clause 7(1) of Schedule 1 of the Coroners Act 2008 (Vic) (25 June 2010) The Coroners Court has held that right to life under s 9 of the Charter of Human Rights and Responsibilities Act requires that questions as to jurisdiction and interpretation in the Coroners Court be resolved to enable inquiries to ‘address systemic and prevention issues’.
In this case, the Coroner, Jane Hendtlass, was required to determine whether the old Coroners Act 1985 or the new Coroners Act 2008 applies to an investigation into 29 deaths that occurred in circumstances where a train and a motor vehicle collided on a level crossing in Victoria. All of the deaths occurred between 2002 and 2009 when the old Act was in operation.
The relevant difference between the Acts is that the new Act requires the Coroner to give greater consideration to ‘public health and safety issues’.
The Coroner ruled that the new Act applies.
In reaching this conclusion, the Coroner was fortified by the Charter of Human Rights and Responsibilities Act, holding that the obligation under s 32(1) to interpret all legislation compatibly with human rights required that, wherever possible ‘interpretation of the law in the Coroners Court must give effect to the public health and safety provisions of the new Act.’ The Coroner further stated that an interpretation of the law such that the new Act, with its preventative focus, be held to apply to the inquest is ‘consistent with Australia’s international obligations under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and s 9 (right to life) of the Charter of Human Rights and Responsibilities Act’. She rejected a submission that the old Coroners Act, which does not have such a preventative and systemic focus, ‘satisfies the requirements of the right to life’.
The Coroner also drew on comparative human rights jurisprudence to support this conclusion, noting that:
The Court of Appeal in England (Secretary of State for Defence v The Queen (on the application of Mrs Catherine Smith) & Ors  EWCA Civ 441) has determined that, in circumstances in which the government is responsible for providing appropriate safety measures, this obligation requires the coroner to conduct an Inquest that investigates not only the immediate circumstances of the death but also the possibility of systemic failure on the part of the authorities to protect life. In England this is called an Article 2 Inquest which refers to Article 2 of the European Convention of Human Rights (the right to life).
Therefore, by analogy, in order to comply with the State’s requirement to protect the right to life, an Inquest in relation to the level crossing deaths must address broader systemic and prevention issues that may have contributed to the death as provided under the New Act.
Phil Lynch is Executive Director of the Human Rights Law Resource Centre