EVIDENCE (REPORTING ON SEXUAL OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg) (15:55): The government, being faced with the dilemma of a member of parliament being charged with sexual offences as defined within the act, had to make a decision about what it would do in the public interest. Quite appropriately, I think the then premier announced that he would undertake a review—it may have been the Attorney-General at that stage—and that Brian Martin QC, the former chief justice of the Northern Territory and, prior to that, senior counsel here in South Australia, would be appointed to review the whole area of legal protection under automatic suppression orders which prohibit the publication of evidence and identity, etc., in respect of these cases.

What is concerning—and I think every member here should be concerned about this—is that, first, the Hon. Brian Martin prepared and dated his report back on 30 September 2011. The government indicated that the report had recommendations for reform, and that was released on 21 November 2011, with a recommendation that section 71A(1) and (2) of the Evidence Act be repealed. The government says that this report was never actually tabled or publicly released; however, clearly, copies of the report have been made available. I have certainly read the report. I have not read the annexures to the report as they had not been provided; however, the report is very interesting.

The report's primary recommendations (1 and 2) were rejected by the government and only recommendation 4 was adopted, and that forms the basis of this bill. This perhaps gives us some indication as to why there was a delay of a year before the bill was introduced. The case before the courts involving a member of parliament remains unconcluded. So, it is concerning that, even though the former premier acknowledged that this was an issue of public concern and that there would be an independent review, we now find, over a year after this report was provided, that the government has finally acted on it, but in such a way as to dismiss the two principal recommendations of the report and adopt what I would suggest the easy way out, which would also give some protection in respect of the current case remaining secret to the world.

The other aspect of this is that, although the Hon. Stephen Wade in another place had picked up the recommendations in the Martin report and had tabled a bill back in June in the other place to repeal section 71A (1) and (2), the government chose to reject that and to proceed with the bill that we currently have before us now. The opposition takes the view from the receipt of the Martin report that recommendations 1 and 2 are more appropriate and, accordingly, we will seek to present an amendment to repeal subsections (1) and (2) of section 71A.

The report itself covers a number of issues. It is quite extensive and I do not propose to read all of it into Hansard, although I am very disappointed that the government is suggesting that this is a document that should not be available for public consumption. His Honour takes some time to set out in his report the history of the development of what is now section 71A of the act and, in particular, how, from the 1960s, the protection had developed.

I think back from 1965, the attorney-general had introduced amendments concerning the powers of suppression of evidence and identity. Although I outlined in my earlier contribution some significant changes that were made in 1975, it is fair to say that over the last 45 years, each of the amendments that have been introduced to this suppression provision have expanded both the application by the definition of what is a sexual offence and also the extent of what is to be suppressed, moving from simply the identification to the publication of information on any of the evidence, both at preliminary and final hearings, depending on which jurisdiction they were in.

The development of this has been over a sustained period. It has been a balancing act but of which some other events have overtaken to ensure that there are certain protections that would justify the recommendation that section 75A(1) and (2) should now be repealed.

Also in the Martin report is the assessment of other jurisdictions, and I think that this is quite important. The report includes other Australian jurisdictions, and I quote:

All Australian jurisdictions have legislation which automatically protects the identity of complainants in sexual cases. Legislation in the Australian Capital Territory, New South Wales, Victoria and Western Australia does not prohibit publication of the identity of a person accused of committing a sexual offence unless identification of the accused might lead to identification of a complainant. In the ACT, a court possesses the power to forbid the publication of the name of a party to proceedings if publication is likely to prejudice the administration of justice or if, in the interests of the administration of justice, it is 'desirable' that the name of the party should not be published. In Tasmania, publication of the identity of a person charged with incest is prohibited.

The only jurisdictions with legislation similar to section 71A are the Northern Territory and Queensland. The legislation in those jurisdictions is in very similar terms and prohibits publication of the identity of a person charged with specific sexual offences until committal for trial. The Northern Territory legislation contains a wider definition of sexual offence for this purpose than the Queensland provisions.

The position in Queensland was the subject of consideration by the Queensland Crime and Misconduct Commission which reported in June 2003.

At that time the Queensland law prohibited publication of the identity of a person charged with specified sexual offences until committal or sentence. The list of sexual offences was significantly narrower than the sexual offences caught by section 71A of the South Australian Act and the prohibition against publication of identity did not apply to a person under police investigation who had not been charged.

I think what is important to remember here, therefore, is that where jurisdictions have similar provisions to us, it applies in a much more narrow context. The commission reached the conclusion that the Queensland provision should not only be retained but should be expanded. The report identified two main reasons for this view, and there was some information recorded by quotes in the Martin report. However, the report goes on:

To the extent that the Commission was of the view that removal of the prohibition against publication of identity would derogate from the right to a fair trial, I do not agree. In my view, other than in exceptional circumstances, delaying publication of identity until after committal for trial does not enhance the prospect of the accused receiving a fair trial. Indeed, in some circumstances the prohibition against publication of identity promotes rumour, innuendo and suspicion and has the potential to prejudice the right to a fair trial.

In the context of prohibition against publication of the identity of complainants in sexual matters, the Commission also made observations about 'equality' between a complainant and a person charged with a sexual offence...

The Martin report goes on:

I do not agree that because the identity of complainants is protected from publication, persons charged with sexual crimes should be 'treated likewise'. Forbidding the publication of the identity of the complainants has nothing to do with trial procedures and the fairness of the trial from the perspective of an accused person. The reasons underlying the protection of the identity of the complainants are complex and there is no direct correlation with the question as to whether the identity of a person accused of a sexual crime should be protected until committal for trial or some other stage of the proceedings such as conviction. Perhaps the more pertinent question to ask is whether persons accused of sexual offences should be entitled to greater protection against publication of identity than persons accused of other crimes, regardless of how reprehensible and abhorrent the other crimes might be.

The report goes on to discuss overseas jurisdictions and states:

The New Zealand Criminal Justice Act 1985 prohibits publication of the name of a person accused or convicted of incest or sexual conduct with a dependant family member unless a victim over 16 years of age applies to the court for an order permitting publication and the court is satisfied that the person understands the nature and the effect of the order. There is no other general prohibition against publication of the name of the person charged or convicted in sexual cases, but section 140 of the Criminal Justice Act confers a wide discretion on the court to prohibit the publication of the identity of a person accused or convicted of any offence.

In the United Kingdom, the position changed in 1988. Section 6 of the Sexual Offences (Amendment) Act 1976 had provided anonymity for persons accused of sexual offences until after conviction or as directed by the court. This protection against publication of identity was repealed in 1988 following a recommendation by the Criminal Law Revision Committee (1984) ('the CLRC'). Persons accused of other crimes were not afforded protection against publication of identity and the CLRC were of the view that those charged with sexual offences should not be given preference in respect of publication of identity.

The issue of special treatment for those accused of sexual offences was again discussed in United Kingdom in 1999 during the passage of the Youth Justice and Criminal Evidence Bill. The government expressed its full appreciation of the very great distress and discomfort that is often experienced by those wrongly accused or charged with sex offences after being publicly identified. However, it was stated that the principle of openness 'is a vital ingredient in maintaining public confidence and encouraging witnesses to come forward'.

The courts in the United Kingdom possess the power to prohibit publication of the name of a person accused of any crime if it is necessary to do so in the interests of the administration of justice.

The report goes on to refer to the United States which, of course, is largely determined by their constitution. I now refer to the submissions to the review. The Martin report outlines a number of submissions that were received, and a summary of the submissions. In some ways, it is fair to say that they are fairly predictable—the usual suspects that line up with the support or otherwise of this legislation.

Not surprisingly, the Australian Broadcasting Corporation's was the only media submission, and the 'Australia's Right to Know' Coalition endorsed the submission. The report states:

The ABC submitted that the current restrictions were out of step with the rest of the country and impose unnecessary and unreasonable restrictions on reporting of court proceedings; have unintended consequences such as preventing other potential witnesses from becoming aware of the proceedings and undermining public confidence in the administration of justice; place practical and unnecessary restrictions on media groups who now operate in a 'borderless newsroom'; and are unnecessary to ensure the accused person receives a fair trial. The ABC gave an example of the difficulties that the current prohibition has caused in practice.

Contributions were received from legal representatives, such as the Chief Justice (who did not express a particular view and just indicated some caution), the Australian Lawyers Alliance and the Law Society. Again, they are in the category of 'the usual suspects', as we expect, to the reverse presentation; that is, they believe some restrictions should be retained.

What is interesting to note is the submission from the South Australian Bar Association. I disclose that I am a member of the SA Bar Association, just in case there are any comments made to that effect. I certainly did not sit on the subcommittee that put the recommendation to the review, so I do not suggest any conflict in identifying this. The Martin report continues:

Two submissions recommended amending the current law to remove or ease the current prohibition. A sub-committee of then South Australian Bar Association ('the Association') pointed out that committal procedures have changed significantly since the 1970's and that in deciding whether to commit for trial Magistrates no longer assess the credibility of witnesses. As complainants give direct evidence by way of written statement and are not cross-examined, the Association noted that the chances of committal for trial are higher than in the 1970's. The Association also accepted that in relation to prohibiting publication of identity, there is 'no real philosophical basis' for distinguishing between persons charged with sexual offences and those charged with other crimes.

The Association recommended that the current restriction in sexual cases be removed subject to identity being suppressed prior to the first appearance in the Magistrates Court and Magistrates being empowered to prohibit publication of identity prior to committal for trial or sentence if 'good reason' for such prohibition exists.

I now refer to the assessment and discussion of the Hon. Brian Martin. I wish to place a significant amount of this on the record as this report has not been made available for general consumption, and it appears the government does not intend to do so. The report states:

The starting point of a discussion is the recognition that the issues under consideration all come under the umbrella of 'public interest'. The primary interest is the proper administration of justice. This interest encompasses the principle of open justice because open justice is a fundamental feature of the proper administration of justice. For present purposes, however, it is convenient to treat the principle of open justice as a separate public interest.

The other aspect of public interest under consideration is the avoidance of undue hardship to individuals caught up in the judicial processes, particularly those found innocent of crimes charged against them.

Although I refer to these public interests as 'competing', they are not always in competition. However, this review centres on situations where these interests pull in different directions.

In the discussion that follows concerning the principle of open justice, it is necessary to bear in mind that section 71A does not close the court to public scrutiny. In that sense section 71A does not impinge on open justice. Section 71A impinges on the 'consequential right' of the news media to publish information about court proceedings until a particular stage of the proceedings is reached.

The act gives statutory recognition to the fundamental principle of open justice and the public interest in that principle. Section 69A categorises the public interest in open justice as a primary objective in the administration of justice. This view of the legislature echoes the common law view which has long recognised the importance of open justice to the working of the court.

His Honour then goes on to refer to a number of the judgements and particular statements by the Hon. Justice Gibbs and also the Hon. Justice Kirby when he sat in the New South Wales Court of Appeal, and I see that a Spigelman CJ in the United States is also referred to.

I will not cover all of those, but I think it is fair to say that there was great concern expressed, during the 1990s and up to the mid-2000s, at the oppressive level of suppression and the importance of the principle of open justice and the opportunity for open justice to be employed without necessarily the restrictive provisions of section 71A or its equivalents in other jurisdictions. The academic assessment goes on to deal with open justice being subject to proper administration. His Honour makes the comment on page 18:

The fact that the principle of open justice is subject to the proper administration of justice is reflected in section 69A of the Act which empowers the court to override the public interest in open justice by making a suppression order in order to prevent prejudice to the proper administration of justice. It also overrides the principle of open justice to the extent that a court is empowered to order suppression if satisfied that an order should be made to prevent undue hardship to an alleged victim of crime, a witness in proceedings or a child. However, the importance of open justice is recognised by the statutory direction that the court may only make a suppression order if it is satisfied that 'special circumstances' exist that give rise to 'a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify...' making the order.

Further commentary is recorded in respect of the judicial assessment of hardship, and then the discussion continues:

Notwithstanding the point made by Kirby P, all Australian jurisdictions have chosen to derogate from the principle of open justice to the extent of prohibiting publication of the identity of an alleged victim of a sexual offence. In South Australia an alleged victim can consent to publication and a judge has the power to authorise publication of the identity of the alleged victim, but if the alleged victim is a child, no such consent or authorisation can be given. In addition where the alleged victim of a sexual offence is a child, the court must be closed while the child gives evidence.

In South Australia parliament has chosen to derogate from the principle of open justice through the operation of section 71A.

As earlier discussed, the statutory prohibitions are complemented by the powers of the court to:

(1) Order specified persons or all persons to absent themselves from court during the whole or a part of proceedings where the court considers 'desirable' to do so 'in the interests of the administration of justice or in order to prevent hardship or embarrassment to any person'.

(2) Prohibit publication of evidence or the identity of a party or witness or persons alluded to the course of proceedings in order to prevent prejudice to the proper administration of justice or undue hardship to an alleged victim, witness or child.

These are the circumstances, therefore, in which the community, through Parliament, has determined that the principle of open justice should be modified or curtailed to the extent of prohibiting publication or empowering the court to prohibit publication. To put it another way, it is in these circumstances that Parliament has determined that the scope of the right of the news media to publish information about court proceedings should not extend to publication of identity or should, potentially, be prevented by court order from publicising identity and other information about court proceedings. In terms of balancing, Parliament has determined the circumstances in which other interests shall prevail over the right of the news media to publish identity and other details of court proceedings.

While the importance of both the principle of open justice and that aspect of the principle which confers a right upon the news media to publish information about court proceedings is a matter of significant weight, nevertheless, the trauma and distress caused to innocent persons by public dissemination of the identity of the person charged with a crime, particularly when charged with a sexual offence, should not be underestimated. In this context, the family of a person accused of a crime stands in a position of special vulnerability. Unless a member of the family is a child, alleged victim or a witness, a court does not possess any power to prohibit publication of the identity of an accused in order to prevent undue hardship to an adult family member. The adult members of the family of a person charged with a crime are not provided with any protection from publication of either their identity or that of the person charged.

His Honour goes on to consider the impact on innocent persons and relates to the examples given by the Legislative Review Committee in 2005, and they are powerful examples. He concludes this in the legislative review material, and I will quote this aspect. It says:

In many cases, through the eyes of retributionists, families of offenders are perceived as though they were the offenders!

Examples of victimisation and the impact on offenders' children:

- Extended family and friends withdrawing contact

- Children are teased and abused about their parent's offence

- Children are excluded from activities and groups because they are seen to be different

- Other parents do not want their children mixing with 'those' children

- Families receive hate mail, being threatened or assaulted

- Property damaged after being followed home from court

- Families being publicly taunted

- Children physically abused/harassed.

It is easy to feel great sympathy for those charged with a sexual offence who are not committed for trial or are acquitted, but whose identity is the subject of publication in the media. The traumatic and distressing aftermath of publication of identity is well recognised and those effects persist notwithstanding acquittal. They will similarly continue to exist if the identity of a person charged with a sexual offence is published and the accused person is not committed for trial. While the failure of evidence to justify a committal for trial is a stronger pointer to innocence, in the eyes of many in the community the suspicion will remain.

His Honour comes to the following conclusions:

There is no 'right' answer. There are competing public interests and purposes. It is for the community to determine the scope and application of each competing interest and to arrive at a balance which the community regards as the appropriate balance between the competing interests. There are valid arguments and reasonable opinions that can be advanced in favour of each side of this question.

The primary consideration is the proper administration of justice, which includes ensuring that an accused person receives a fair trial. When cause exists for concern that publication of information might have the tendency to prejudice a fair trial, there is a natural tendency to err on the side of caution and to prohibit or impose restrictions on publication. Generally speaking, such prohibitions or restrictions are not permanent and it is relatively easy to feel comfortable in the knowledge that the prohibition or restriction only delays the flow of information to the community. Comfort is also gained from the knowledge that, other than in exceptional circumstances, the court remains open to view by the public. These same considerations can easily lead to taking a relaxed and sympathetic view to the purposes of section 71A. However, pulling in the opposite direction is the principle of open justice and recognition that the principle and flow of information to the community are at the very heart of maintaining public confidence in the administration of justice.

The natural tendencies to which I have referred are perfectly understandable, but in my view they possess the capacity to undermine, sometimes without adequate jurisdiction, the importance and maintenance of the principle of open justice. In turn they undermine the importance of the flow of information to the public. As Lord Steyn said In Re S (a child), in the passage earlier cited:

'Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the value of the rule of law.'

He then goes on to refer to other cases in respect of freedom of expression by the media, freedom of expression, and the importance of that. He goes on in his conclusions:

At the time the current provisions were enacted, preliminary examinations involved the calling of oral evidence and magistrates were required to assess the credibility of witnesses and exercise an active discretion to decline to commit an accused person for trial. Today, preliminary examinations are almost invariably conducted on the papers and magistrates are not involved in assessing the credit of witnesses. In sexual cases, the complainant is not cross-examined to test the reliability of their version. Little room remains for the exercise of the discretion not to commit for trial. The Office of Director of the Public Prosecutions has advised that since late 2006 there are only two matters recorded on the data base of that office in which an accused charged with a sexual offence was not committed to trial.

As to sexual assault matters determined summarily, it also appears that very few cases are affected by section 71A. Only the offences of gross indecency and indecent assault are capable of being dealt with summarily. Statistics suggest that from 2005 to 2009 only one case involving a charge of indecent assault resulted in a finding of not guilty.

These statistics relate directly to the issue of whether the prohibition on the publication of identity bears a 'reasonable relationship' to the purpose of the prohibition. It appears highly likely that only rarely will a person charged with a sexual offence not be committed to trial or be found not guilty after a summary trial. It might be said that no harm is done if the prohibition against publication of identity for a limited period involves so few persons, but on the other hand such an approach would tend to undermine the importance of the rule of law and the freedom of the media to disseminate information about court proceedings.

He goes on further to say:

In my opinion there is no reasonable justification for a retreat from the current recognition of the importance of both the principle of open justice and the right of the media to publish information concerning court proceedings. When these matters were first given statutory recognition in 1989 they were described as 'considerations of substantial weight'. The standing of these factors was elevated in the 2006 amendment which categorises the safeguarding of the public interest in open justice and the consequential right of the news media to publish information concerning court proceedings as 'a primary objective in the administration of justice'.

It is also appropriate to bear in mind that in 1989 the community, through parliament, determined that it was no longer appropriate to permit a court to prohibit publication of the identity of a person charged with a crime in order to prevent undue hardship to a person charged. Since 1989, if any change has occurred in community attitudes to freedom of the media to publish information about court proceedings in other matters, it is to favour the strengthening of that freedom.

Ultimately the primary consideration is the proper administration of justice, which includes ensuring that a person accused of a crime receives a fair trial according to law. As I have already explained, other than exceptional circumstances, in my view publication of the identity of a person charged with a sexual offence prior to committal for trial or before conviction does not undermine either the presumption of innocence or the right to a fair trial. To the contrary; the current prohibition has the tendency to promote rumour and innuendo which in turn can create an atmosphere prejudicial to the accused person whose identity is suppressed. In the context of ensuring a fair trial, the court possesses ample power to give appropriate directions emphasising the presumption of innocence and to prohibit publication of evidence and identity if the prohibition is required in the interests of the administration of justice.

In my opinion the interests of the few who would be adversely affected by removing the automatic prohibition currently mandated by section 71A do not justify the constraint on the principle of open justice affected by section 71A. To the extent that the few are adversely affected by publication of identity, their personal interests are outweighed by the 'greater public interest in adhering to an open system of justice'. In addition, removal of the automatic prohibition on the publication of identity in these cases will remove the source of rumour and innuendo which currently accompanies the charging of sexual offences in any cases which attract media interest. Publication of identity might also promote the possibility of witnesses coming forward.

There is a further factor which, in my view, is a significant factor favouring the repeal of the current provision. It concerns equality between persons accused of crimes. I recognise that sexual crimes are viewed by the community as particularly abhorrent, but there are other crimes that also attract abhorrence and revulsion. Those accused of other such crimes are not provided with the same protection from publication of identity. In my view this inequality between persons accused of crimes is not justified. As I have already explained in my opinion, it is not appropriate to approach this question as one involving equality between a complainant and an accused. The issue is one of equality between persons accused of crime and in the absence of a compelling reason, all persons charged with committing crimes should be treated equally.

If section 71A is retained in its present form, I recommend an amendment to empower a court to permit publication of identity and of information concerning proceedings and evidence, if publication at a time earlier than permitted by section 71A is required in the interests of the administration or for the purposes of any investigation.

Of course, that is the option the government has taken up. He goes on to say:

As to the current prohibition against publishing evidence or a report of proceedings, even if the existing prohibition in section 71A(2) against publication of identity is maintained, there does not appear to be any compelling reason why there should be a prohibition on publishing information about the evidence or the proceedings if such publication would not tend to identify the accused person or the complainant. In this context the point made by ALA concerning local knowledge in regional areas of small populations is relevant, but if publication would tend to identify a complainant because of a smaller local population, publication would remain prohibited.

The alternative of prohibiting publication of identity until after conviction possesses a degree of superficial attraction because of its capacity to avoid the harm and prejudice that publication of identity brings to those who are acquitted. No other jurisdiction has taken such a drastic step and, in my opinion, such an extensive intrusion into the principle of open justice is not justified and would be accompanied by major problems.

In arriving at these conclusions, I have put aside the impact of the internet. I have approached the issues with fundamental principles in mind and endeavoured to assess the appropriate balancing of those principles. I have not addressed the difficult question as to whether any form of prohibition against publication of identity is appropriate given the difficulties attached to enforcing these orders and preventing publication through the internet. The terms of reference specifically direct that I leave this question aside because it is being investigated at a national level through SCAG and it would be inappropriate for me to investigate this area.

I pause to digress from the report to say that I am disappointed that this was excluded from the terms of reference for Justice Martin.

The Hon. J.R. Rau: He will still be working on it.

Ms CHAPMAN: The Attorney interjects that he will still be working on it. It would not make much difference. He could have another year because they waited a year before they even brought this legislation to the attention of the house, so I find that a pathetic proposal. In fact, for someone who has addressed this matter comprehensively to be excluded in the terms of reference from dealing with the internet, when it is a major area of concern—and I thought that the previous premier at least had clearly identified that as being an area of concern, particularly as to the control of it.

I, for one, would have to say that the only justification for excluding that from the terms of reference is that there would inevitably be a finding that it is impossible to protect against that and that therefore the absurdity of having this legislation continue would be exposed. His Honour goes on to say:

Having recommended the removal of the current prohibition against publication of identity, evidence and any report of proceedings before a Magistrate or Justice, I am required to consider what other measures, if any, need to be taken to:

(a) ensure the accused receives a fair trial;

(b) the prosecution case is not prejudiced; and

(c) protect or restore the reputation of people who are accused of but not found guilty of a sexual offence.

In my view, no other measures are required to ensure that an accused person receives a fair trial or the prosecution case is not prejudiced. Ample powers exist to enable a court to preserve the integrity of a trial and its fairness.

The third question of protecting or restoring the reputation of people who are not found guilty of a sexual offence is extraordinarily difficult. Other than a suggestion that penalties for non-compliance with section 71B be increased, the submissions did not address this question.

Mud has a distinct tendency to stick. Much depends upon the way in which the media disseminate information about the dismissal of a charge or an acquittal. Often the publication of this information is presented in such a way as to contain an implication that the acquitted person is, in reality, guilty.

Section 71B already requires the publication of a 'fair and accurate' report of the result and a 'reasonable prominence' having regard to the prominence given to the earlier report. Financial penalties are substantial. While I recognise that in practice section 71B does not produce the ideal result, I do not recommend any amendment in this regard.

These recommendations represent my personal views. As I have said, there is no 'right' answer and opinions can legitimately and reasonably vary.

He then sets out his recommendations 1 and 2—which the opposition favours—that section 71A(1) and (2) be repealed and that there be no other recommendations requiring amendment.

What is concerning, as I have said, is the failure of the government to make this publicly available, because a comprehensive amount of work has been undertaken. The delay in its implementation, even to the narrow extent of accepting recommendation 4, is very concerning, particularly given that the case that prompted all of this is still alive.

The other matter that I wish to raise is this: there are other ways of getting the names of accused out in the field. The most notable of course, I think, were the disgraceful statements by Senator Nick Xenophon in federal parliament last year. It was one of those rare occasions on which the then premier and I totally agreed, and we made comments in this parliament about those statements. Senator Xenophon claimed that Monsignor Ian Dempsey had claimed that there had been some inappropriate conduct of a sexual nature against John Hepworth. It received considerable publicity.

What concerns me is how easy it is, having made that disclosure, for this type of information to be perpetuated. Just last Saturday an article was published by The Advertiser in which Mr Nigel Hunt named these parties again and reported that the police had completed their investigation and that the matter was now with the DPP for consideration of the charges to be laid. We do not know whether they will be laid or not; we do not know whether anyone is guilty of any kind of improper conduct in this case, and I would not make any statement about it even if I knew.

After having been named in the parliament, this article suggests that the matter is being considered by the DPP in relation to charges to be laid. The Advertiser and Mr Hunt can take refuge in the fact that it has been published nationally and that there has been at least implied consent by the accused after he made a public statement. This would protect The Advertiser or the journalist from any allegations of a breach of section 71A, which specifically provides for a penalty for the publication of not only any proceedings against a particular person, where there may be a prosecution, but the identity of a person who has been, or is about to be, charged with a sexual offence.

I am not suggesting that The Advertiser is in breach of the act, but I make the point that it would be able to get around it by the reprehensible conduct, I think, of accusing someone of such a crime. I put in a request to Mr Xenophon to give some clarity as to what he would do in future with any of these allegations and what I think is an abuse of the parliament in naming these people when, clearly, no charges had been raised at that stage. Frankly, that was a matter for the DPP and the judge to make a determination on, not by members of parliament. I think the premier made a very strong comment about the attempt to interfere with that.

In essence, we have a situation where our legislation is quite unique. It has been developed in other jurisdictions overseas and dismissed. In the United Kingdom, something like 24 years ago they got rid of theirs because of the imbalance of the protection of the unfairly accused versus the interests of justice. In our own country there are only two other jurisdictions that are close to us, and theirs is in a very narrow context both by definition and those who are caught by it.

I confirm the opposition's position, as we did last year when we at least identified the recommendations of the report and that we would support those. That culminated ultimately in a bill by the Hon. Stephen Wade consistent with those recommendations, and rejected by the government, and we now have this bill before us which the opposition feels is not only inadequate but will leave us out of step with the rest of the country and the rest of the world.

The Hon. R.B. SUCH (Fisher) (16:40): I will make some brief comments. I am not a lawyer and I am always impressed when I hear my colleagues in here who have had the privilege of studying law and practising it. This bill is one of those that warrants us treading very carefully because the risk involved in terms of not furthering justice are quite high. I notice that the court has discretion and I think that that is important. I think we need to rely on, and we can rely on, the judgement of judges and magistrates to consider an application in relation to a publication order.

I am always wary when politicians get involved in determining publication or determining the guilt of a person, and I remind members of the time when the former member for Hammond was in this place and he threatened to name several members of this house—or at least one, but I believe several—as paedophiles. That caused enormous concern within the government, which sought to remove the privilege of the house of protection. It did not get to that point and, fortunately—and I do not claim to be any special person—I was able to talk to Peter and point out that, if you name someone and that person is even later found to be innocent, you have destroyed that person.

There is no way in the world that a member of parliament, where an allegation is made in here that they are a paedophile, would ever get elected again. So, we have to be very careful and that highlights the danger of politicians. I have a lot of time for many of the things that Senator Nick Xenophon does, but I did not agree with him naming a priest in the way he did in the Senate. We have to be very careful in that regard.

Our society has a particular problem with any matters to do with human sexuality. I made that point in here recently that one of the reasons we often have sexual offences is because the people within our society have not been able to deal with the whole issue of human sexuality in a responsible and mature way. It is not surprising that the media are particularly interested in sexual-type offences. We know why this measure is before the house, and I will not go into the detail. Members are well aware of why we are looking at this.

I think we have to be careful that we do not have justice driven by the media, or what is called justice driven by the media, because if you are not careful you can end up with a lynch mob mentality, and someone who, in effect, may be innocent, is found to be guilty and prosecuted and hounded by the media. A lot of media pressure in this particular case has given rise to this bill. But having said that, my view generally is that the less we have in the way of suppression in the court system the better, but there are times when it is necessary to suppress a name and, as I said at the start, I think that is best determined by the judge or magistrate, taking into account the facts, not simply whether or not it is a good story or whether or not you will get people interested in the story and purchasing a newspaper or watching television or whatever.

We know the world has changed as a result of electronic media and it is putting the whole system and, in fact, many aspects of the justice system under pressure. I note, and the Attorney has indicated in his report that this whole issue of the electronic aspect is being looked at nationally. I do not believe that it will be an easy thing to do.

We can see what happens when people use electronic media for bad purposes and what has happened recently in relation to causing not just riots in various parts of the world but the death of six soldiers, at least, in Afghanistan. They are the people who wear the cost of someone doing something that is irresponsible and which, sadly, is now a tool in the hands of some people who can be irresponsible; tools which can cause great harm. We see it in a whole lot of ways—trolling, sexting and all sorts of inappropriate behaviour.

I come to the point that I am very uneasy about this bill. I think it could work and, hopefully, it will work in the best way and will lead to an improvement or will enhance justice, but I say that because I have confidence in our judiciary to make sensible recommendations and decisions about the restriction on publication. However, I am still a little bit uneasy about this measure because I think up until now the system has worked fairly well and I am a bit concerned that we might be doing this simply to make it easier for the media to do what it wants to do, which is to make money out of not just information but entertainment.

I can only give qualified support for this bill. I know the Attorney is the steward of this measure but I would like to be more confident that its implementation will enhance justice and not in any way undermine it.

Mr PEGLER (Mount Gambier) (16:47): I rise to indicate that I will be voting against this bill. I feel that we could be opening a can of worms by putting this bill through the parliament. We have often seen people wrongfully accused, particularly by others who are being spiteful to them. Once a bill like this goes through those people will use that opportunity to have those people named and wrongfully accused and then they will, of course, be found guilty by the media before they have even been to court. I think it is a step in the wrong direction. I have always been a firm believer that people should be presumed innocent until found guilty, and the court system is the place for that, not the media. Naming people prior to going through the court system I think would be completely wrong and put those people's lives in jeopardy.

I might also say that I was completely appalled by what Senator Xenophon did in naming that priest. I feel that he used parliament as a coward's castle and it is a bad reflection on the processes of parliament. I hope that we do not bring in a bill that will allow that to happen out in the public. I will not be voting in favour of this bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:49): I thank all members who made a contribution. Can I first address the members for Fisher and Mount Gambier. Member for Mount Gambier, I understand exactly what you are saying, and if I had to move from a position from where I am to somewhere else, it is exactly where you are. I understand all the points you make and I understand why you make them, I have the greatest of sympathy for them, and I respect your opinion on this matter.

Can I say, to make it very clear, that the measure I am putting forward has that as the default position. So, if nobody does anything, exactly what you want does continue to happen. It is just that, if somebody says there is a good reason as to why there should be a publication, they can make an application to the court and ask the court to allow a publication. That is my model.

I am not delighted to hear that you are voting against my bill, but I am delighted about one thing: if you are voting against mine, you are going to vote early and vote often against the ones the opposition is going to put up, because what the opposition wants to put up is to remove every protection whatsoever and just make it an open slather. So, I am comforted that the member for Mount Gambier, in voting against me, is going to take not quite as much pleasure as he is going to have a little bit later in voting against them, and that is good.

Member for Fisher, again, I sympathise with your concerns about this matter. Personally, from my point of view, it was a finely balanced thing as to whether we did anything at all, or whether we said, 'Look, we will allow a court to have the opportunity of permitting a publication when there is a good reason to,' which is the model we went for. I acknowledge and understand the concerns, member for Fisher, that you raised, and I do appreciate your contribution on the bill. Likewise, I hope that you would be even more troubled by what the opposition, and in particular, the Hon. Mr Wade, is going to be pursuing.

In the discussion that we have had about this—largely contributed to by, as usual, my learned friend the member for Bragg—a number of things have been discussed. What has been thrown up is basically three ideas: (1) the media, (2) open justice, whatever that means, and (3) individual reputation.

I think we all get what the individual reputation thing is about, which is you, me or any of us, as an individual, to have something said of us which damages us in the eyes of all our peers, cannot be taken back, and ultimately turns out to be either totally or partially incorrect; we cannot recover from that. I think we all get that and, to move the debate slightly, that is why we have been so concerned about having the provisions about secrecy in the ICAC legislation, to prevent exactly that sort of thing from happening.

The interesting thing is, in the remarks that you heard from the member for Bragg (and no doubt if, in a moment of insomnia, you wanted to read what the Hon. Stephen Wade says about this in another place), you would see that they actually converge the idea of open justice and the media so that there is no difference between the two, and there is a big difference between the two—a big difference. Let us call a spade a spade; let us explain this for what it is. Why is it that the media want to be able to publish these things? Is it because the media are interested in the law and justice?

Can I just, in parenthesis, remind you who this media is: this is the media that went around hacking into people's mobile phones and computers so that they could beat up individuals by accessing private information illegally and put stories which had that magical tag of 'prurient interest' about it in the paper, so they can outsell other people who were trying to do various things to get stories. These are the people who are called the media. This is their standard about what they think justice is. I am not making up. There is a whole commission of inquiry in the United Kingdom at the present time going on about this.

What about the magazine that has just been published in France with some scumbag who has been hanging around the side of a hill somewhere with a telephoto lens so that he can have a look at a couple of young people on a holiday and sell a photograph, which some degenerate is prepared to publish in a magazine? Do you think they are doing that because it is something about open justice? Do you honestly think that is what it is about? It has nothing to do with open justice and everything to do with selling newspapers. 'Bugger the consequences to the individual concerned, we just want to sell a newspaper.' Has anyone here read the NT News lately or indeed at all?

An honourable member: It's all about crocodiles.

The Hon. J.R. RAU: Not always.

An honourable member interjecting:

The Hon. J.R. RAU: Yes—here I will not mislead the parliament. I did read the front page of the NT News a few weeks ago and the headline was, 'I put a cracker up my clacker'.

Mr Pengilly interjecting:

The Hon. J.R. RAU: The member for Finniss obviously knows more about this story than I do. I can say that in that story, the closest it got to fair reporting—or at least relevant reporting—was to say that the police inspector who was called to the scene was quoted as having said, 'It obviously seemed a good idea at the time.' Aside from that, it was there purely because it would attract people to read the paper. It had no value at all aside from that.

An honourable member: And you did.

The Hon. J.R. RAU: Yes, and I now feel vulnerable. I feel violated because I was attracted to this ruse, but I will not be caught again. Anyway, the point is: what is the news media about? There are learned journals out there that do focus on actually reporting things in a fair and reasonable way who do not make their money by doing the sort of journalistic equivalent of a peepshow all the time on someone else's life. There are straight outfits that work that way but there are a lot that do not.

I am delighted that a number of people in this place today have referred to Senator Xenophon's behaviour, which I know is in a different context. I join with the member for Bragg and the other two members who spoke in saying that I thought it was appalling. However, can I say, unfortunately he is not Robinson Crusoe, because Senator Heffernan has had a bit of a history of doing similar things, too. Does anyone defend any of that? No.

Let us not wrap ourselves in the flag and put our hands on our hearts and look tearfully up at the concept of open justice and mistake the media for that. It is not. They have their own interests which sometimes coincide with open justice and many times do not. What they are really on about is selling newspapers or having people watch television or listen to the radio or whatever the case may be, so let us not get too carried away.

The next point I would like to make is this: there in an issue about media convergence. It is a real issue where the internet and television and everything is starting to become a bit fuzzy. There are some parts of that that are quite easily regulated under the broadcasting and television act or whatever and there are some bits that are not. That is why it has to be dealt with at a national level.

The member for Bragg says, 'You should have got Brian Martin to go off and have a look at this.' This is actually something that the Australian Law Reform Commission has just published a whole paper on. They have just published a substantial work on this and it is being looked at nationally. The extent or complexity of this problem is almost mind-boggling. It pops up all over the place.

It is not just sexting; it is not just texting; it is not just suppression orders being breached. It is a whole range of things, a myriad of situations in our lives, where new technology is changing the rules. Does that mean that we just say, 'Righty-oh,' and we throw our hands up in the air and abandon all the old rules? Bear in mind that the new technology is not regulated at all. It is a jungle. What goes on out there is what you can get away with. Nobody has even the slightest pretext of how to control it or manage it. So, if we just throw our hands in the air and say, 'Oh, well, new technology, let's not worry about it any more,' you are vacating the field altogether and just walking away from the issues.

As to a few comments the member for Bragg made, first, she dismissed, with a fairly brief reference, people like the Law Society as 'the usual suspects'. I note that the member and the Hon. Stephen Wade quote from them as if they are generally writing on tablets on Mount Sinai, but on this particular occasion they have a different view and I am a bit puzzled about that, but never mind.

The Bar Association says, apparently, they have no philosophical basis, as lawyers, to want to retain the existing scheme, and I can see that. From a lawyer's point of view, I get that. But, you see, this is not just about lawyers. It is about privacy and about giving individuals some protection, when there is a question about their guilt, from having their lives destroyed by unreasonable publication of details—of allegations. They are only allegations at that point.

I think too much can be made by people who wish to just pretend that they are all about open justice when, in effect, all they are doing is smooching up to the same people who gave us the scandals in Britain, the same people who have seen the News of the World go out of business who have that sort of thinking of what 'journalism' is all about, that sort of ethic about what 'journalism' is all about.

There is no attempt on the part of the advocates of a more extreme position to work out how you sort the wheat from the chaff in the journalism world, how you actually weed out those unscrupulous characters who will do anything and run anything because that is a way to sell a newspaper or a way to get somebody to watch a TV show. I am very sceptical about this notion of what the media thinks must be good because they are fabulous. There is so much evidence against that proposition, I do not think I have to argue it any longer.

What are we proposing? We are proposing that there be a general proposition that people have their identities protected for a period of time which can be, on application, reversed by a judge or a magistrate. That is what we are putting up. I understand that the opposition will oppose it because the opposition wants to remove all protections. I am glad a large amount of what Mr Martin said has been read into Hansard because he says many times there is no right or wrong answer: it is a matter of opinion.

Ms Chapman: Why don't you publish the report?

The Hon. J.R. RAU: Can I quote to you what the Hon. Stephen Wade said in Hansard in the Legislative Council of 13 June 2012. He said, 'His report was completed on 30 September 2011 and tabled on 21 November 2011.' That is according to Stephen Wade.

Ms Chapman: But it wasn't. You know that.

The Hon. J.R. RAU: Has he apologised to the council for misleading them?

Ms Chapman: We want the whole world to be able to read this report.

The Hon. J.R. RAU: Anyway, here it is. Mr Martin has made recommendations and we have decided what we think is a reasonable way to go. I appreciate that in this instance I have the member for Fisher and the member for Mount Gambier having very strong views on one side; we have the opposition who is so far in the other direction you will not be able to see them with a pair of binoculars; and I am much closer to where you are but not exactly in your space, member for Mount Gambier. That is where we are.

I do not know whether there is any point in doing anything other than voting on the second and third readings of this because everyone's positions are clear. The line has been drawn in the sand by the member for Bragg, I have expressed my point of view, and the member for Mount Gambier has put his point of view.

Ms Chapman: So why did it take a year?

The Hon. J.R. RAU: We have to prepare things properly. You like plenty of notice to be able to prepare your speeches, and we would be devastated if you did not have your stuff prepared because you would not be able to assist us with stuff as thoroughly as you have. So, here we are, here is our chance and, hopefully, we are just going to vote on the second and third readings.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:04): I move:

That this bill be now read a third time.

Bill read a third time and passed.