The senior next of kin is a person who has particular legal rights, and these rights activate at discrete stages of the investigation. These rights are the only thing that differentiates the role of the senior next of kin from that of family members and friends who are recognised as interested persons.
The only rights that are exclusive to the senior next of kin under the Act are the rights to:
- object to an autopsy (s 38)
- object to exhumation (s 39)
- be notified of a coroner’s decision not to hold an inquest (s 26(1)(c))
- request a coroner not hold an inquest into a workplace death (s 26A(2)).
Each time one of these rights or matters arises in an investigation, the coroner is required to give the senior next of kin the opportunity to exercise their right(s).
Section 3A of the Coroners Act 1995 (Tas) explains which person is the ‘senior next of kin’. In summary, the senior next of kin will be the first available person on this list:
- the current spouse (which includes the other party to a ‘significant relationship’ according to the definition in the Relationships Act 2003)
- a child who is at least 18 years of age
- a person in a caring relationship (according to s 5 of the Relationships Act 2003)
- a parent
- a sibling who is at least 18 years of age
- an executor of the will
- a personal representative.
Note: That the current spouse can include a same or different sex relationship, it can also include a relationship that is registered through a Deed of Relationship or one that is not registered. A spouse can also be the surviving partner in a marriage, including a marriage between people of the same sex or different sex.
Note: If the deceased person is Aboriginal, the senior next of kin can also be an ‘appropriate person’ according to the customs and tradition of the community or group to which the person belonged.
In most cases, it is clear who the senior next of kin is and that legal status will not change throughout the investigation. However, sometimes during the course of the investigation new information comes to light, indicating that another person may be the correct senior next of kin. In this case, the coroner is required to evaluate the information (including seeking submissions from any other person asserting that status) and make the determination afresh the next time there is an opportunity for the senior next of kin to exercise a right.
In some cases, two or more people have equal right to the position of senior next of kin (such as a mother and father, or siblings). To facilitate the investigation, coroners expect families to reach an agreed position as to who is the single point of contact / senior next of kin. If there is no clear channel of communication, investigations can be impeded.
To make an application for your client to be declared senior next of kin, or to delegate the responsibilities of the senior next of kin to another person, refer to Legal Professionals.
All family members and friends are able to apply to the coroner’s court to be recognised as ‘interested persons’ to the proceedings. Even though the senior next of kin is the main point of contact between family members and the coroner’s court, in most cases relevant correspondence will also be sent to other close family members or friends who request it.
If you are a legal practitioner representing the senior next of kin then you may apply to access, view and copy the coronial record.
It is important to note that the coroner’s decision as to who is the senior next of kin is only relevant to proceedings in the coroner’s court. A coroner’s decision in this regard does not affect parties legal rights under other enactments which may require a determination as to senior next of kin.
A senior next of kin who has been notified of a decision by the coroner not to hold an inquest may apply to the Supreme Court, within 14 days of receiving notice, for an order that an inquest is held - s 26(2).
The deceased person cannot be collected from the mortuary until the coroner signs a certificate authorising their release. This does not mean a family cannot organise and choose a Funeral Director, however a date should not be set for the funeral.
The senior next of kin will be notified by the court once the certificate authorising release is signed.
Once a deceased person is released by the coroner, there are no additional restrictions placed on cremation, manner of burial or location of burial by the coroner (over and above the usual Tasmanian laws surrounding burial and cremation). Families should refer to the Burial and Cremation Act 2019
What if I don’t want to be senior next of kin?
You can “delegate” your responsibilities as senior next of kin by asking another person to do it for you. You should send the court a ‘statutory declaration’ saying this is what you want, signed both by yourself and by the person you choose. Statutory declaration forms can be found on the Magistrates Court web site, under Forms or collected from the Magistrates Court. Coroner’s court and Magistrates Court staff can assist you to fill out this form.
What if I think I should be senior next of kin but I’m not?
You can apply to the coroner if you think you should be the senior next of kin. It is important to remember that there are only four rights that the senior next of kin has that other interested persons don’t (refer to the list above). To apply, contact the coroner’s court. You will be given the opportunity to give the coroner any information you have about why you are the correct senior next of kin. If the investigation is just beginning and you want to exercise the right to object to the autopsy, you need to contact the coroner’s court right away by telephone. If it is after hours, you can get in touch with police by calling 131 444. Police will pass on any messages to the coroners’ associates; autopsies do not happen on the weekend.
Once the coroner has your information, they will get information from anyone else who says they are the senior next of kin. The coroner will then decide who is the correct senior next of kin. If you don’t agree with the coroner’s decision you should get legal advice as you may want to apply to the Supreme Court to have the decision reviewed.
The coroner’s decision on who is the senior next of kin has no bearing on any legal proceedings outside the coroner’s court. If there is a disagreement about to whom the body should be released, parties should apply to the Supreme Court under probate law.
How do I get a death certificate and what is an interim certificate?
The Registry of Births, Death and Marriages maintains the Register of all deaths in Tasmania. It also issues death certificates. Once the Coroner receives the initial Police Report of Death, a Registration of Death Statement is generated and sent to BDM. The death is then registered and an interim death certificate can be issued.
The interim certificate will have an endorsement stating ‘incomplete registration – cause of death subject to Coronial inquiry’.
Once the cause of death has been determined, the Coroner’s court notifies BDM. BDM will then finalise the death registration and the endorsement statement is removed. After this, anyone who received an interim death certificate can return it to BDM in exchange for a standard death certificate.
If you require a copy of a death certificate, you may apply online at Births, Deaths and Marriages: Apply online – your checklist.
Identification procedures
- One of the coroners’ duties is to correctly identify the deceased person.
- ‘Visual identification’ is carried out by someone who knew the deceased person when they were alive, and who views the deceased person (for more information, refer to ‘A Guide for Families and Friends: Practical matters ’).
- If visual identification is not possible, or requires supplementing, then other procedures may be used to confirm identity such as:
- fingerprinting (which is conducted by police)
- matching features against medical records (such as matching a dental examination and a dental x-ray to dental records, a process which is carried out by forensic odontologists, or matching the serial numbers of implants such as pacemakers)
- DNA testing of close blood relatives, or personal items such as a toothbrush.
Property/Exhibits
Police will take all the personal effects belonging to the deceased person. If any family member or close friend is seeking return of these items, you can contact the coroner’s court.
If the personal effect/s is/are seized as part of the coronial investigation, it may either be returned under a Care and Control Order (after being examined and permission is granted by the coroner), or upon conclusion of the matter.
Exhumation
If a deceased person is buried and the Chief Magistrate reasonably believes it is necessary for the investigation, they may order that the deceased person be unearthed to be examined by a pathologist. The process of bringing a deceased person out of the ground is called ‘exhumation’. In practice, exhumation is extremely rare.
If a deceased person is to be exhumed, 48 hours’ notice must be given to the senior next of kin and to the owners of the place of burial. The senior next of kin may apply to the Chief Magistrate (and also to the Supreme Court) to prevent the exhumation.