Chapter 3
The legislation


3.1Under the Coroners Act 2006 (Coroners Act), if a death occurs in New Zealand, there is reasonable cause to believe that death was self-inflicted, and a coronial inquiry into the death has not been completed, section 71(1) prohibits the publication of “any particular relating to the manner in which a death occurred” without a coroner’s authority. Even after a coroner has found a death to be self-inflicted, section 71(2) prohibits the publication without a coroner’s authority of “a particular of the death” other than the name, address, and occupation of the deceased person and the fact that the coroner found the death to be self-inflicted.

3.2The only basis on which a coroner may give authority to make public particulars of the death, either before or after an inquiry into the death has been completed, is that “the making public of particulars of that kind is unlikely to be detrimental to public safety”.31

3.3This provision has proved to be problematic in practice. The terms of reference for this review highlight two particular issues with the interpretation of section 71. First, which particulars of a suicide are covered by the phrase in section 71(1) “particulars relating to the manner in which a death occurred?” Does that phrase preclude reporting the bare fact that the death was a suicide? Or does it merely preclude reporting the method of the suicide? Second, what should a coroner consider when determining under section 71(3) whether a report of a detail of a suicide death is “unlikely to be detrimental to public safety?”

3.4The practical context giving rise to the greatest concern is that the immediacy of interest in a death is just after it has occurred, yet it may be many months before the coroner makes a finding. What can the media or social media say in the intervening period?

3.5Some media organisations have taken the position that they are not in breach of section 71(1) if they do not report the method by which the deceased caused their own death, but report solely the fact that the death was self-inflicted.

3.6At least two interpretations of section 71(1) appear to be tenable. A broader interpretation is that reporting the bare fact that a death is the result or suspected result of suicide is not permissible. A narrower interpretation is that the prohibition extends only to specific matters such as the method by which the deceased caused their own death.

The historic background to the present legislation

3.7We begin in the traditional fashion with a consideration of how section 71 of the Coroners Act came into being. The Coroners Acts of 1846, 1858, 1867 or 1908 had no analogous provisions. Changes came with the enactment of the Coroners Act 1951.

United Kingdom

3.8Between the New Zealand Coroners Acts of 1908 and 1951, a report under the chairmanship of Lord Wright, one of the most respected British Law Lords, was presented to the Parliament of the United Kingdom.32 This was a broad-based report with a mandate to inquire into the practice of coroners and to recommend any areas for change.

3.9Under the system then in place in the United Kingdom there were three broad concerns:

3.10On the problem of imitation the Wright Committee said:33

It is a matter of common knowledge which none of our witnesses disputed – that a suicide in which some particular means is adopted is frequently followed by a chain of similar suicides … witnesses of great authority took the view that the publication of details of the manner in which suicide was committed was calculated to lead to others who had a tendency to suicide to take their own lives. It was argued on the other side that publicity did no more than suggest a particular means of suicide to a person who intended to commit suicide and who was only influenced as to the means to adopt … we consider that the true view of this matter is that there are at any one time a number of people contemplating suicide to whom the knowledge of what may appear to be an attractive and painless method of ending life is an important factor in making up their minds to destroy themselves.

3.11Having noted an argument that inquests should be held in private but rejecting that as an absolute necessity, the Wright Committee went on:34

We have been impressed by the consensus of opinion that the present publicity of inquests on suicides often causes very great hardship and does a great deal of social harm. We have the greatest reluctance to propose anything which would restrict the freedom of the press. To uphold that freedom is a matter of the highest public importance and it should be jealously guarded. It has generally been used with admirable restraint by the newspaper proprietors for this country. Nevertheless, in this particular matter, we have reached the conclusion that the publication and the press of the proceedings at inquest on suicides should be limited to a statement of the name and address of the deceased and of the verdict that the deceased died by his own hand …

The Committee also expressed concern about the publication of things such as witness statements and photographs in the press “before the inquest is held”. As it transpired nothing was done in response to these recommendations.

3.12In 1965 the United Kingdom Home Office commissioned a second review of the coronial system. That resulted in a 1971 Report. This second Committee took a different view from the Wright Report on the subject of publicity of suicide inquests. It said:35

We think that the argument that publicity increases the number of suicides is insufficiently supported by clear or irrefutable evidence to justify so controversial a step as the total prohibition of press reports.

It rejected the idea of a discretionary provision “since the effect of this would often be to place coroners in a most invidious position”.

3.13A third review of the coronial system took place in the United Kingdom in 2003.36 It recommended that inquests no longer be mandatory in cases of suicide. This had the effect of substantially reducing the number of such inquests that would continue to be conducted in public.
3.14The net result of these considerations was the Wright Report recommendation, that some statutory restriction be put on reporting suicide, has never been adopted in the United Kingdom. The Editors’ Code of Practice, issued by the United Kingdom Press Complaints Commission, stipulates that “[when] reporting suicide, care should be taken to avoid excessive detail about the method used”,37 but there is no express statutory provision.

3.15We note that recently, coronial law in the United Kingdom has had a complete (and highly contentious) overhaul by the Coroners and Justices Act 2009, which came into force in July 2013. That legislation created great public controversy because it appeared to revive proposals for the possibility of some secret hearings and, on the other side, the necessity to accommodate English law to the Human Rights Act 1988 and the European Convention of Human Rights.

3.16An Australasian commentator has suggested that the new Act “has made disappointingly little progress towards a modern, integrated, prevention focused coronial system for the United Kingdom” and compared the “increasingly outmoded system for investigating death” in the United Kingdom, with the progressive reforms initiated in New Zealand, and subsequently built upon in some Australian states.38

3.17It is not necessary for us to comment on the wider debate here. It suffices to say there does not appear to be anything in the complex 2009 United Kingdom legislation that bears on the issue we are pursuing other than to note that the overwhelming concern of the United Kingdom commentary and media was that its thrust was against, rather than for, greater transparency. We agree with these concerns.

New Zealand

3.18What is important for our purposes is that in New Zealand the insights of the Wright Committee appear to have been the inspiration for section 21 of the New Zealand Coroners Act 1951. This provided that a coroner may direct that no report or no further report of the proceedings of an inquiry be published until after the coroner’s findings. Where the coroner found the death was self-inflicted no report of the proceedings, without the authority of the coroner, could be published other than the name, address and occupation of the deceased person; the fact that an inquest had been held; and the fact that the coroner had found that the death was self-inflicted.

3.19This was a discretionary regime, but it represented a significant change to previous practice. The provision was the subject of some debate in the New Zealand Parliament prior to its enactment. The then Attorney-General referred extensively to the Wright Report in support of the proposed restriction on publication.39
3.20By 1984 the Department of Justice in New Zealand had issued a review of the Coroners Act 1951.40 It suggested that the existing law on the reporting of suicide “based on the recommendation of the Wright Committee, represents a balanced approach that satisfies both the public interest and the need for restraint in certain cases”. While such a balance might allow some “potentially corrosive conjecture” to occur, “most people will realise that an independent judicial officer enquiring into the matter will shortly investigate the facts and make a finding”.

3.21The recommendations in that Report were largely adopted in section 29 of the Coroners Act 1988. However, there was an expansion in at least two respects: the restrictions were made automatic rather than by order of the coroner; and the restrictions took effect prior to an inquest being opened.

3.22It was arguable that section 29 of the 1988 Act also prevented reporting the possibility that a death was self-inflicted. Certainly the explanatory note to the Bill as introduced suggests it was intended to limit the scope of section 29 further.41 Clauses 29(1) and 29(2) were not debated in the House, nor was the different wording in the two clauses.42
3.23Further amendments to section 29 were made in 1996. Whether it was intended to take out the textual anomalies by using the defined term “particular” in both sections, or whether it was to address some particular holdings, is not apparent to us.43
3.24In any event, by 1998 the Government had asked the New Zealand Law Commission to review the entire coronial system. This Commission’s Report was released in 2000.44 Ultimately it led to the enactment of the current Coroners Act. That Report was silent on the scope of the restrictions on reporting suicide.

The enactment of the present provisions

3.25The Bill, which would become the current Act, was introduced into Parliament in 2004.45 It was considered by a Select Committee in 2005. The present section 71 was clause 61 in the Bill.

3.26The Select Committee said:46

Making public of details of self-inflicted deaths

Clause 61 of the bill as introduced provides that no person may make public specific details in cases of suspected or established self-inflicted death without the coroner’s authority. “Making public” includes publishing on an Internet site that is generally accessible to the public. The bill provides that the coroner may authorise the making public of particulars of a self-inflicted death only if that is consistent with public safety.

We considered amending the bill to permit more detail about self-inflicted deaths to be made public, as some submitters had suggested that greater transparency might lead to better understanding of the issues relating to self-inflicted death. However, we remained concerned about the implications for public safety and the possible consequences of such a change, and support some restriction continuing in the interest of public safety.

We note that family members of the deceased would be covered by the provisions restricting making public details of a self-inflicted death. People who wanted to make public the details of a self-inflicted death of a family member would have to apply to the coroner for authorisation. We expect that, when considering whether or not to authorise the making public of details of a self-inflicted death, coroners would weigh carefully the interests of family members of the deceased and the potential risk to public safety if particular details were made public.

3.27Taken as a whole, this passage suggests that the Select Committee thought the purpose of section 71 was to prevent publication of the method by which the deceased took their life, rather than the fact that the death was self-inflicted. This is because the first paragraph refers to the restriction being on “specific details”; the second paragraph refers to the possibility of publication of “more detail”; and perhaps most distinctly, the Committee went on to conclude that “some restriction” is desirable. This suggests that the restrictions do not extend so far as to prohibit publication of the fact that a death was self-inflicted.

3.28The difficulty appears to be that the Committee did not clearly consider the timing problem; that is, restrictions that applied before the completion of an inquest, and afterwards. Consequently, it did not specifically consider whether a death could be reported a suicide or self-inflicted before the coronial inquest had determined that.

3.29There was much debate in Parliament leading to the passage of the Act. The then Minister for Courts, the Hon Rick Barker said:47

Hon RICK BARKER (Minister for Courts): … I reassure Mr Finlayson that the Justice and Electoral Committee has got this legislation right. I read with interest the submissions, such as that made by the Press Council. I draw his attention to what I think is the most important line in that submission: “The Press Council eschews debate on the issue of ‘contagion’ or ‘copycat suicide’, except to say that the evidence to support this is very unclear.” On the basis of eschewing the research, the Press Council opts for freedom of the press.

I did some cursory investigation myself, and found every piece of evidence to be very clear. It did not take much to research the information through the internet. The first thing is that copycat suicide has been recorded over and over again. Every piece of research showed that when a high-profile suicide is attempted, others follow. We had the example in Hong Kong whereby a very unusual method was used for suicide. It had never been seen before, and by putting it in the public arena, in a very short period of time it became the third most common form of suicide in that area. Every other piece of research shows that when someone, particularly a young person, commits suicide, other suicides follow. The copycat and contagion effect is documented incredibly throughout. It is beyond doubt. So the Press Council is saying that it wants to have the ability, under the guise of freedom of speech, to report suicide, and that the public’s right to know is greater than the negatives that can befall the general public. I am very cynical about this.

… the research shows that copycat suicide and contagion is a very real factor. Anyone who has studied this issue will tell us that when someone commits suicide in an area, it sends a signal to others that suicide is an OK thing to do. That person is the permission-giver. We had a very good example of that recently in a small central North Island town, where a number of people took their lives, one after another. Despite Parliament’s prohibition on reporting that matter, a senior executive of a television programme said: “Despite what the law says, I believe that the public has a right to know”. Although there were legal consequences arising out of doing it, the programme went on to display all of the facts. That case demonstrates the responsibility taken by the media on this issue.

If I could for one instant believe that the rules that were agreed to would be honoured, I would be tempted to consider the matter, but I can not. The fact is that, contrary to what the media shows, the number of suicides in New Zealand is falling. That is the situation. The public perception is somewhat different. The second inaccuracy in the public perception is that youth suicide is the main problem, but that is not the case, either. The most common form of suicide in New Zealand is male and is aged 25 to 30 years old and older. Those statistics will come as a surprise to people. The third thing is that a disproportionately high number of Maori people commit suicide. Again, that is contrary to the public perception, because the media have highlighted only those that they know will maximise their traction. If the media were able to highlight a particular youth suicide in an area, the shock and horror aspect of it would certainly sell even more newspapers – and we are told that that is the benefit for freedom of information. Well, I do not accept that. My view is that Parliament is entitled to have a view on these things. It has had a view on them, and it has been very successful. The rate of suicide in New Zealand is declining and I think that Parliament is taking exactly the right stance on this issue.

3.30A few weeks later the same Minister said:48

The media suggest that removing the restrictions on reporting details of suicide will improve public understanding of the issue and reduce the number of self-inflicted deaths. The Government does not agree. An increasing body of evidence is showing that media reports of suicide can trigger [emulative] and copy-cat suicides and lead to increases in both the overall number of suicides and the use of a particular method of suicide.

3.31It is not necessary for us to finally determine the scope of the restriction in section 71(1). We are satisfied that the scope of the provision is unclear and that if a legislative restriction continues to be justified, the scope of that restriction should be made much clearer. We address the question of whether a legislative restriction continues to be justified in Chapter 6 and the scope of a proposed new restriction in Chapter 7.

3.32We turn now to the meaning of the words “unlikely to be detrimental to public safety” in section 71(3), which concerns the grounds upon which a coroner may grant authority to publish the particulars of a suicide. Coroners have told us they would like more guidance as to what they should take into account when making a section 71(3) determination.

3.33As it currently stands, the phrase is very broad and is open to multiple interpretations. In particular it gives little guidance as to the strength that should be given to the evidence linking reporting suicide with copycat behaviour. On the one hand, “public safety” may require that the public be warned about a particular method of suicide so that parents or friends of a vulnerable person may take steps to protect that person from risk. On the other hand, the evidence of copycat suicides suggests that reporting on the method of suicide may have the unintended consequence of “advertising” that method to a vulnerable person.

3.34We consider that if an exemption from the statutory prohibition continues to be required, the grounds upon which it is to be made should be as clear as possible about the extent to which the evidence of copycat behaviour deriving from suicide reporting should be taken into account. We address this matter in Chapter 7.

31Coroners Act, s 71(3).
32Home Department (UK) Report of the Departmental Committee on Coroners (Cmnd 5070, 1936) (Wright Report).
33Report of the Department Committee on Coroners, above n 32, at 18-19.
34Report of the Department Committee on Coroners, above n 32, at 18-19.
35Home Office (UK) Death Certification and Coroners (Cmnd 4810, 1971) at [15.27].
36Home Office (UK) Death Certification in England, Wales and Northern Ireland: Report of a Fundamental Review (Cm 5831, 2003).
37Press Complaints Commission Editors’ Code of Practice (January 2012).
38Ian Freckleton “Anglo-Australian coronial law reform: the widening gap” (2010) 17 J Law Med 471.
39(29 November 1951) 296 NZPD 1184.
40Department of Justice Coroners Act 1951: A review with proposals for amendments (November 1984).
41Coroners Bill 1987 (170-1) (explanatory note).
42Section 29, Coroners Act 1988 “(1) If there is reasonable cause to believe that a death that occurred in New Zealand after the commencement of this Act was self-inflicted, without the authority of a Coroner no person shall publish any information relating to the manner in which the death occurred. (2) Without the authority of a coroner no person shall publish any details of a death that a coroner has found to be self-inflicted, of the circumstances of the death, or of an inquest into the death, other than the name, address, and occupation of the person concerned, and the fact that the coroner has found the death to be self-inflicted.”
43Section 29, Coroners Act 1988, as substituted by s 4(1) Coroners Amendment Act 1996:
“(1) In this section,—[…] Particular, in relation to any death, means detail relating to the manner in which the death occurred, to the circumstances of the death, or to an inquest into the death.
(2) If - (a) There is reasonable cause to believe that a death that occurred in New Zealand after the commencement of this Act was self-inflicted; and (b) No inquest into it has been completed,—without the authority of a coroner no person shall make public any particular relating to the manner in which it occurred.”
44Law Commission Coroners (NZLC R62, 2000).
45Coroners Bill 2004 (228-1).
46Coroners Bill 2004 (228-2) (select committee report) at 3.
47(2 August 2006) 633 NZPD 4666.
48(24 August 2006) 633 NZPD 4865.