Evidence (Reporting on Sexual Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2019.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:16): I wish to make a few further concluding remarks in relation to this bill. If I have not already, I thank the member for Badcoe, who was the lead speaker on this matter, for her contribution and indication of general support with the qualification that she foreshadowed that the opposition may move an amendment in another place, and I am happy to canvass that further in committee.

Can I also say that we have had the next wave of campaign from The Advertiser, and, indeed, to some degree in relation to a current national campaign that it is running, namely, the secrecy or anti-secrecy push—the right to know. It has had various titles over the years, but the most recent one has been very vocal in relation to the issue that this legislation will resolve.

It will not resolve the whole issue of suppression laws in relation to criminal litigation, and there are a number of other aspects that we need to continue to monitor—and no doubt there is room for improvement—but the reduction in the number of suppression orders generally in our courts is encouraging. Importantly, this will be a very clear message that this government is supporting transparency.

I think that Mr Sean Fewster, as our chief court reporter, has been acknowledged in contributions by members. I, too, wish to thank him for his advocacy in this area, but I also wish to acknowledge Meagan Dillon, who has been participatory in her advocacy in this area as well. They bring to light a litany of cases which should have been exposed, and other members have raised these, but I will also indicate a recent circumstance and the consequence of it not being dealt with.

There was a publication on 15 November last year and it related to a senior person in the State Opera of South Australia. I do not need to repeat his name—it has been in the public arena—because the issue of their name is not pertinent for these purposes. What is important is that this person was charged and he pleaded not guilty to two counts of being in an unlawful sexual relationship with a minor. He also denied an indecent assault and an account in relation to sexual intercourse with a person under 18 years.

Obviously, the allegations were very serious. At the time, back in May 2017—that is, under the time of the previous government—there had been an announcement by the Chairman of the State Opera to simply advise that this person had resigned 'for personal reasons'. Almost simultaneously, the person's alumni profile was removed from the distinguished awards section of the website of one of our universities. People knew about this, people were acting on it, and people were making statements about it but the general public were not allowed to know who this person was.

What is more disturbing to me is that, for the 18-month period during which there was an internal South Australia Police inquiry involving senior officers, the identity could not be published because of this automatic statutory suppression regime. Whilst at the time the police spokesperson conceded that it had taken a lot longer than it should have, in relation to that period of continued concealment as a result of this legislation the real question is: how many children were exposed to this person during that 18 months? How many children may have been vulnerable to some predatory behaviour by this person?

I am not asserting that there were any. I simply make this point: while things are under a secret shield, in cases like this, in this case the person continuing to work with children and young people for that whole 18-month period, how many of them could have been exposed at least to the risk of sexual exploitation or abuse?

This is one of the fundamental reasons for ensuring that once a person is charged they go to the court system and they turn up to court. They have a right to be able to apply, all victims may apply—anyone, for that matter, can apply—for a suppression at that point to protect the interests of a minor, particularly a victim, and the process is from that point, not another 18 months while police or other parties might continue investigations post the charging, post the court hearing until a committal or conviction. That is the current law. That is what we are asking to change, and this is exactly the sort of example that has come forward, where there has been a continued exposure of risk, which is completely unacceptable.

The other aspect is this—and I just reiterate this—it is important to remember, in cases such as this, the reputational damage that can be caused to someone who may be innocent of such an allegation. But what is even more important is that it relates to things such as the cost laws that we have in relation to felonies. People can be charged with murder, they can be acquitted and they are not automatically eligible to line up to say, 'I want my costs back from the state.' The principle that sits behind not giving them that is to ensure that the state or the people of South Australia act without fear that they are prosecuting at that serious level.

There are lower order charges which can result in cost orders being made against the prosecuting body—effectively the state—and they are accepted as being in the category of that being reasonable. But at the high end, we have laws that enable the agencies that represent the people of South Australia, whether they be the police or the DPP and the like, to be able to investigate and prosecute matters without fear that they will have to meet the costs of that.

I commend the bill to the house and I thank all the members who made a contribution to this debate. I have an indication from the member for Badcoe that she has a number of questions. Although I do not have the benefit of excellent advisers that would ordinarily be here, I will assist where I can and take on notice and provide at a subsequent briefing that information to the member.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms STINSON: For the convenience of the committee, staff and yourself, Mr Acting Chair, I indicate that I have questions on all four clauses. My first question is on clause 1. Labor has been advised of stakeholders who were consulted on this bill. Can the Attorney-General confirm that the list that has been provided is a comprehensive and exhaustive list and advise what form the consultation took?

The Hon. V.A. CHAPMAN: I may have a list. Just let me check. I have a number of the submissions here but I do not have a list, or I am not familiar with the list that you have been provided with, but I indicate that I will take that matter on notice. If the member has been provided a list at a briefing as to those consulted—

Ms STINSON: Not me. I did not go to the briefing.

The Hon. V.A. CHAPMAN: No, sorry. If the shadow attorney-general was provided a list, then I am sure that would be the list to which the bill had been distributed. As to whether other people were consulted, I will take it on notice and check.

Ms STINSON: Can the Attorney please advise the position of each stakeholder in regard to the amendment contained within the bill? In those submissions, what submissions might have been returned? Can the Attorney advise the position of each stakeholder who responded and the nature of their comments and attitude toward the amendments in this bill?

The Hon. V.A. CHAPMAN: Where appropriate and we are able to disclose submissions that are put, we will endeavour to provide that to the member. Many of these, of course, are already publicly available, such as the Law Society's, for example. In any event, as I cannot give you a comprehensive confirmation of the entire list, I will take that on notice.

Ms STINSON: Further, can the Attorney provide a copy of submissions made by stakeholders in relation to this bill?

The Hon. V.A. CHAPMAN: No. The position is, as the member well knows, that we make available submissions that are not identified as being presented to us on a confidential basis. We also do not as a matter of course provide copies of correspondence from heads of jurisdictions or departments.

Clause passed.

Clause 2.

Ms STINSON: In relation to clause 2, can the Attorney give some indication as to the period of time along the spectrum, if you like—the time line—from allegation through to charge and then first appearance. Can the Attorney give some detail around when this proposed bill takes effect? I understand that the relevant time that has been indicated here is at the first hearing, the first court appearance date; however, the specific circumstance I am thinking of and trying to elicit some additional detail around is a circumstance where, for example, there are allegations about a person prior to charge. I did speak about this briefly in my earlier statements.

I notice that in the explanation of clauses, dot point 2 under clause 4—and I know we are not on clause 4 yet, but I am referring to it to assist the Attorney—provides that the relevant time would be when a person 'has been, or is about to be, charged with a sexual offence'. Can the Attorney detail what that means in terms of the operation of the proposals in this bill? At what point on that spectrum will these changes have impact, particularly in reference to the circumstance where allegations have been put but no formal charge has been laid as yet?

The Hon. V.A. CHAPMAN: I think it is exactly in the reference at the end of the member's comments on what we are talking about. I think it is pretty obvious—that is, where someone has been charged, and there would be evidence of the charge, and they would be on their way to a court process. If I am correct in understanding that commentary, I think the member's area of concern is targeted at how one defines when someone is about to be charged.

If the member for Badcoe were back in her previous life, she might have become aware that the police had attended a person and taken a report and statement and serious allegations had been made that had come to her attention and, if the person was in the process of being arrested—there might be a house siege or any event that might bring the matter to the attention of the journalist—if there was sufficient evidence to satisfy a court that on the balance of probability the person was about to be charged she would find herself in deep water if she were to tweet that person's details for the purpose of publication. I hope I have given an explanation there.

There would have to be sufficient evidence for the member for Badcoe, in this case, to be prosecuted for a breach of these rules to satisfy a court that on the evidence which was known to her and on which, on the balance of probability, she would have expected him or her to be charged. That is a court determination. That is a matter that obviously would have to be dealt with, but it is reasonable that in consultation with the police and the courts, for example, they do not want a situation where there might be an alert to someone as a result of publication of material that would interfere with their capacity to follow through and conduct the search, arrest, detainment and whatever else leading up to the charge of that person.

It is a little unusual; there is no question about that. It is not as definitive as a charge, but it is one that is important to ensure that there is not a prejudice to the investigation and successful charge, ultimately, of a person of interest. That is why we have sub judice rules. That is why, for example, on this side of the house—there have been a few examples in the past 12 months where I think these have been shamefully abused—we try to respect the fact that when a court is seized of a matter and they are leading up to the trying of the facts in that case, the last thing they need is people making statements which in some way would be prejudicial to the successful prosecution of someone who is guilty or would let somebody get off when they are guilty in those circumstances.

We need to be very mindful of that. This is consistent with recognising that that critical period between the police conducting their investigation and identifying that have sufficient evidence to charge may be a significant period, but if on the balance of probability the facts surrounding that would be reasonable for the reporter—I am using that example, but it can be anyone in the publication in this sense—they would be captured, and they should be. That is why we have this provision for 'about to be' charged.

Ms STINSON: Just to expand on that and maybe seek some further clarity, obviously the expression 'or is about to be', which I understand is in the explanation of clauses, is not defined in any way and, of course, it is not defined in the bill that is put forward, so there is quite a degree of vagary in that. I think the Attorney is saying that a court would have to define that against a particular set of circumstances, so that is one thing I would seek some clarity on.

The second is around what the test is as far as a journalist or another being aware that a charge was imminent. I understand that the Attorney has not been a journalist. From my experience, the police, and the DPP for that matter, do not generally provide a great deal of information to journalists before a charge is to be laid. As she identified, sometimes that can be a matter of hours or days, whereas at other times it can be a matter of months or even years in extreme cases. So there is not necessarily a uniform time period in terms of a journalist even having any reasonable understanding of when a charge might be likely to be made or when a charge is imminent.

I would seek some clarity around whether there is a particular test, for example, whether the prosecution would have to prove that, in some way, the journalist had knowledge of a charge being imminent or whether a journalist would have to be aware that police were investigating. Sometimes journalists do not know if police are investigating certain allegations or not. Often journalists get a 'no comment' from police media on matters.

Does it fall to the journalist in any sort of prosecution for falling foul of this part of the prospective law? Does it fall to the journalist to have to prove that they were not apprised of certain details? Is there an assumption that a journalist should have some degree of understanding about whether a charge is imminent? Who does the responsibility fall to—the prosecution or a defendant journalist—to prove what they did and did not know at certain times in terms of their decision to publish or not? I am talking about prior to charge here. I will leave it at that.

The Hon. V.A. CHAPMAN: Firstly, that phrase 'about to be charged' or part thereof is not defined in the act or the bill. I am going to make some general statements here. There are many phrases and words that do not have an identified definition for the purposes of the legislation. However, as a general rule, they attract the ordinary meaning of how they are described. By virtue of consideration of matters within the envelope of cases in our common law, courts might develop a level of precedent in relation to how that is interpreted.

But can I say again, and it is very general because it is hard, but I will try to use an example which will hopefully be helpful for members, in general, if there is an alleged breach of a publication prohibition, it is the obligation of the prosecuting party to prove beyond reasonable doubt that that has occurred. The factual determination as to each of the circumstances surrounding that would have to be considered and some of those matters are on the balance of probability.

For example, if a journalist—again, we will use the poor journalist because they are the ones often in the firing line in these situations—receives information from a female person who says to her, 'I have just been here with the police at my house. They have taken away my husband for questioning. They have indicated that they're going to take him down to X police station and that he is going to be charged because he has assaulted me and hit our children,' or whatever the allegation is, it may be that the journalist may say, 'Is that anything to do with an offence relating to "sexual nature" within the definition of what we are talking about here?' They may make that inquiry. They might say, 'Yes, well, there's also going to be a charge of rape of our daughter,' and so on.

There is no direct evidence that the person has been charged, but it may be in that factual situation that the publication within the envelope of that knowledge is sufficient to support a circumstance where the person had not been charged but was going to be as sufficient to breach this, when the journalist then sends the detail in to her editor—or, these days, tweets it or whatever—to publish that information: 'So-and-so is going to be charged this morning with serious sexual offences against his children.'

Hopefully, that gives some light as to what we are talking about here, but it is still up to the prosecution to be satisfied that that person caused the publication to be made and was in a circumstance where they had knowledge of the likelihood of that person being charged. It is designed to be able to capture that period leading up to the charge. However, if anything happened between then and the time the person was charged—that is, he gave an explanation when he got to the police station and he was not charged, and he later went and packed his bags and tried to nick off, the police were alerted to that and then they find that his name is all over the tweet world—the police might be a bit cranky about that. They might say, 'They have interfered with us because they alluded to him, so he went straight to the airport and he has left the state.'

We have to respect the fact that our investigative agencies have a job to do. They know the importance of being able to keep that under wraps, so to speak, to a large degree. However, they need to clearly conduct their investigation in a manner that is going to give them sufficient evidence to be able to have a successful prosecution. As a parliament, I think it is incumbent on us to make sure that we support that process and then, if there is a charge and the person is then brought to court, of course they can put their argument as to suppression in those circumstances. However, it puts the obligation on them rather than the reverse of an automatic suppression.

Clause passed.

Clause 3.

Ms STINSON: Could the Attorney detail how this act would operate retrospectively, if indeed it operates at all? For example, in the past there have been some offences where the offender has never been named publicly but they are of such public interest that I imagine journalists would try to utilise this change to the law to publish the identity of those people involved in past offences. I am talking about cases that are now complete, where people have been charged, prosecuted and found guilty, or indeed the charges might have been dismissed, prior to this act taking effect. Is this retrospective in any way? Could a journalist publish the identity of a person charged or found guilty of sexual offences due to these changes?

The Hon. V.A. CHAPMAN: I would not think so. I cannot think of any circumstance where that would apply. I will take that on notice and check if that is the case. Bear in mind that there are a number of historical sexual assault cases in which a person has been convicted and the identity of the accused remains suppressed. It is not actually because of this law. It is because the court have maintained the view that, even post conviction, it is in interests of somebody, usually families.

I think we heard the example from the member for Mount Gambier of the protection of a small community in a regional area that would have the whole stain of this issue. It would be clearly known who the person or family or victims would be, and therefore the suppression has remained on after that time. I think he outlined the angst of one of the victims, or the mother of one of the victims, in not having had that person's name exposed. I will take that on notice. If there is a circumstance in which it would apply to some historic case, I will provide that to the member.

Ms STINSON: I do not think this would be the appropriate forum, so I am happy to provide the Attorney with specific instances that I am thinking of in which the statutory suppression—quite separate from the imposition of a suppression order, which is obviously under a different part of the legislation—has prevented publication of the identity of an individual in the past. My question is around whether, because of these changes, that would now be able to be revealed. I am happy to provide some specific examples and seek an answer at a later date between the houses.

Clause passed.

Clause 4.

Ms STINSON: Can the Attorney-General confirm that a victim might not necessarily be informed that the name of an accused may be released under these changes, or prior to the consideration of whether a person's name should be released at the first court hearing date?

The Hon. V.A. CHAPMAN: These changes do not affect that issue. These changes relate to the restriction on reporting. As I think I said in the course of the debate, I am advised that the practice of the prosecuting authorities—I know this because we were responsible for the DPP, and frequently the police have a role in the prosecuting aspect post investigation or arrest or detainment, etc.—is that, where there is a known victim, they are informed of the charge. Frequently they are a very key witness or provide evidence which is necessary in medical statements, etc., to support and corroborate the evidence that is going to be used by the prosecuting authorities. So there is quite a reliance frequently on victims or family members of victims.

The general process is that they continue to be kept informed. Certainly, I am advised, the DPP's office get involved. We have a whole witness assistant division to try to facilitate that. As I have also recently reported to the house, the Commissioner for Victims' Rights also has a role, particularly in serious crime, of being a support person and generally giving advice and referrals to someone going through that experience.

As a party, we have made a commitment to try to improve the continuation of advice to a victim unless they opt out, that is, unless they say, 'Look, I got through that experience. He's been prosecuted,' or, 'She's been arrested. I don't want to have anything more to do with it. Take me off the list.' An endeavour is made post police and prosecuting authorities by courts but, more importantly, Corrections if the person is taken into custody under some kind of penalty arrangements. We are trying to make sure that there is an improvement with data so that we can keep victims continuously informed.

However, back in this space in the time that we are talking about, relating to this bill, which is leading up to the charging or the charging up until that first court date, then, yes, it is very important—I agree with the member for Badcoe—and our agencies, to the best of my knowledge, try to do that, but they do not always know all the victims. That is one of the aspects that I have asked the member for Badcoe to look into and perhaps consult with the police.

My understanding is they are not keen to have mandatory imposition of advice to victims and feel that would be an impediment on their capacity to do that, when their responsibility is to catch villains, obviously, and protect people as best they can. As I say, it is an important part of their case to have the support of victims, but they do not wish to be part of a mandatory process. Again, I will leave that matter for the member for Badcoe.

Ms STINSON: Did the Attorney think about making the relevant time at the point of charge and, if so, what options were canvassed for having the relevant time earlier than the first court date and what arguments were put forward either for or against that? Why has the Attorney ultimately decided on their first court appearance as the most appropriate time for the statutory suppression to be considered?

The Hon. V.A. CHAPMAN: It is largely on the advice, having read the Brian Martin review and also consulting with the stakeholders to ensure that we had a balance between having a situation that does not transfer to the same regime as all other crime, because there is still a modification in this law by allowing that window of protection pending that first court hearing. It is at that point, usually, that an application can be made to a magistrate—or a superior court, depending on where it is lodged, but usually to a magistrate—to seek the protection of a suppression order. The reason why that has been chosen was based on all the advice we received.

Ms STINSON: I wonder if the Attorney can give her thoughts on a matter that she just raised, which is that there is now, or continues to be, a different regime in terms of sexual offences and all other offences. It is generally regarded that murder is the most serious offence, yet under this change it is treated differently.

The protection of the identity of a person who is accused of murder is treated differently and more loosely than a person who is charged with sexual offences. It is the Attorney's interpretation or understanding that the community views sexual offences as more serious than murder and is therefore the reason for being satisfied with two different regimes in relation to suppression, or are there some other reasons why the Attorney is presumably satisfied to have two different regimes in operation for people who are charged with sexual offences versus every other crime, including murder?

The Hon. V.A. CHAPMAN: It is a subjective assessment as to whether someone thinks child abuse or sexual exploitation is worse than murder. I will not get into that argument. Both are very serious circumstances. However, the situation with the exploitation of a child in a sexual way obviously has very significant reputational damage; that is accepted.

It is fair to say that I think the public have a fairly low regard for someone who kills a child or murders a child, but the reputational damage to the child as a victim of a murder is very different from if they are still alive and have to go to school and be part of a community. I think there is a distinction, but I do not want to cast any view on which is the worst.

I think they are equally bad, just as I think it is a shocking situation if you are a parent of someone who had been murdered or someone who murdered somebody, or that you were the mother or father of someone who had their child sexually assaulted, or whether you were the mother or father of the person who conducted the sexual assault of a child. These are pretty bad, but with a murder I think it is self-evident that the victim has died. The victim is dead and so the reputational damage issue is not so severe.

Ms STINSON: For the offender it is, though.

The Hon. V.A. CHAPMAN: I am just saying that the reason often for a suppression order has nothing to do with protecting the person who has been accused, it is the poor innocent child who would have been the victim who would easily be identified as the child of that person, for example, if there was an incest situation, or somebody who worked in a school, or someone who was working with children in another capacity and they were known to be in that area.

All those circumstances lead to victims who are alive and, frankly, have usually gone through some pretty horrific times as it is, so we do not want to make it worse for them. Regarding the idea of having this suppressed up until that court date, the magistrate can make that determination by balancing all those things: reputational damage, capacity to be able to bring other cases forward—that is, letting the public know—public interest arguments and protecting the poor children who may have already been victims.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.