Bills

Evidence (Reporting on Sexual Offences) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's amendment.

The Hon. V.A. CHAPMAN: I move:

That the Legislative Council's amendment be agreed to.

I rise to speak on the amendment and also within the envelope of the legislation which we presented to the Legislative Council and which they have returned seeking this insertion.

It is important to remember that the bill itself, when passed by the Legislative Council, had quite a long gestation period. It was to give effect to a 2011 review undertaken by the Hon. Brian Martin AO QC, which recommended substantially lifting restrictions against reporting on sexual offences, that is, the reporting or publication of those who are charged with sexual offences. The primary recommendation of the Martin report was that sections 71A(1) and (2) be repealed. However, this was not taken up by the previous Labor government at that time. Justice Martin, in his review, stated:

In my opinion the interests of a few who would be adversely affected by removing automatic prohibition currently mandated by section 71A do not justify the constraint of the principle of open justice affected by section 71A. To the extent that the few adversely affected by a publication of identity, their personal interests are outweighed by the greater public interest in adhering to an open system of justice.

He went on to say:

Removal of the automatic prohibition on publication of identity in these cases will remove the source of rumour and innuendo which currently accompanies the charging of the sexual offences in any cases which attract media interest. Publication of identity might also promote the possibility of witnesses coming forward.

So, of course, we progressed the bill under this government. I am immensely pleased to indicate that, although this amendment does confirm a pre-existing practice—namely, facilitating the person who has the responsibility for conducting the criminal investigation, which is usually a police officer or police officers—they must at the relevant time ensure that all reasonable efforts are made to notify the victim. That is a practice which has been enshrined in the amendment presented to us and which is already in place.

I am not certain as to the requirement about this being in legislation, or whether there is any lack of trust in relation to the police officers undertaking this and their commitment publicly to continue to do that, or if there is evidence of a failure to do it that would justify us imposing this legislatively. It was raised by the member for Badcoe in the course of the debates we had in this place.

The position was made clear at that stage that this was not a matter in which there was any evidence whatsoever of a noncompliance, of some lazy approach or of some incapacity or inability, in one way or another, not to actually do the best they could to make sure the victim or victims were notified and that therefore there did not seem to be justification for it to be in legislation. Nevertheless, the other place have considered that matter and they see that as necessary.

What is concerning to the government is that the long gestation period of this legislation, which ultimately had to come into place—that is, the implementation of what Mr Martin reviewed back in 2011—we now know to have coincided with the rather tawdry history of a former member of parliament, indeed of the Legislative Council. I think he no longer has the title of 'honourable' because he has now resigned from the parliament, having been convicted of sexual exploitation cases. Mr Bernie Finnigan had at the time, back in 2011, been charged and his name was suppressed under this very legislation. In fact, the rumour quickly went out that Mr Finnigan's name was suppressed because of this legislation.

So it is very important to the government, even with this amendment, that we get the legislation progressed because it was scandalous to have a situation where there was an allegation that a member of the state parliament was charged with some kind of child predation/exploitation and everyone was under a cloud. I think at one stage there was reference to it being a he, and then there was reference to 'he' being somebody in the Legislative Council. There was this terrible period when a number of male members of the Legislative Council were under that cloud.

It is a deeply disturbing situation—where the suppression arrangements, which were designed for reasons I will not repeat, as they are all detailed in the original debates around the original legislation and canvassed by Mr Martin—to find that the government of the day's reluctance to progress Mr Martin's recommendations occurred at the very time and in the very year that one of their own had actually been charged and was getting the benefit of the secrecy allowed by the law as it currently is.

So it is really important to our side of the house—it took us years, obviously; we got into government in 2018 and we are very pleased for this to be early on our agenda and early on our commitment for transparency—that we progress this. We took it to the 2014 and 2018 elections. Members might recall that by the 2014 election Mr Finnigan's name had been disclosed and the shadow over the male members of the Legislative Council had been lifted. He had been identified, and he had sat in the parliament for a total of something like 4½ years before he finally had a trial in April 2015 and was sentenced in November 2015 by Judge Millsteed. Of course, ultimately there was a disclosure of the name, but it was not an acceptable circumstance. There had been the rejection of a recommendation of a significant review and that simply was not acceptable to us.

Members are aware that adding in this amendment, and adding in this obligation that statutorily imposes a duty on the investigating party to take all reasonable efforts, will not detract from the principal obligation of there being full disclosure. It will also ensure, by virtue of the passage of the bill, that the automatic suppression orders imposed on proceedings involving persons accused of sexual offences will no longer occur. That is a triumph, clearly, for victims, advocates and people who have a right to know who has been accused of sexual offending in our community.

I am aware during this debate that the member for Mount Gambier has been a vocal opponent of this legislation, with the support of the opposition, in relation to the general thrust of this legislation. His views may be not translated or extinguished from the point of view of having any effect to try to stop this reform, but he takes the view that the reputational damage—if I respectfully paraphrase his position on this—is too high to allow publication prior to conviction. Therefore, he has maintained the position that this law should not pass and that this reform should not be advanced.

I would like to say from the government's point of view that we appreciate the opposition's—better late than never—indication of support from the member for Badcoe on behalf of the opposition.

Ms Stinson: We supported it from the beginning.

The Hon. V.A. CHAPMAN: No, I am talking about years later. This was a review that was done in 2011, just so the member is aware of this.

Ms Stinson: This bill we are talking about has been supported by the opposition the whole time.

The ACTING CHAIR (Mr Cowdrey): Order!

The Hon. V.A. CHAPMAN: The previous government advanced a bill with a minor reform, which we supported because it moved it a little way. We were very critical of the previous government. The member for Badcoe was not a member of that government, so I will give her the benefit of having some influence on the new assembly in opposition.

Nine years later, we are now passing a bill in this house with the support of the opposition, and I thank the member for Badcoe for whatever influence she might have had in relation to that because it is to be commended. Even if it is belated from our point of view, we say the previous law was not acceptable to us. In 16 years of Labor administration, clearly it was acceptable. Now, under this government, the newly formed opposition has accepted that it is simply not acceptable and we are getting on to move those amendments, and we are very proud of that bill.

The community's expectation and public interest in the transparency and the open justice system are obvious. The right to publish reports on sexual offences in South Australia, in line with other states, will now be achieved. It addresses the absurdity of the situation in South Australia where we can access news reports and social media posts regarding proceedings in South Australia which originate in other states. A contemporary example of this occurred with George Pell's trial. That is another one that is not over yet. Nevertheless, we can read about it where news agencies and social media outside Australia have identified him as the defendant, which are accessible over the internet. So we are living in a different age. Communication is available. Obviously, the internet produces other challenges for the confinement, distribution and publication, etc., of information.

We appreciate the right to have a fair trial and the rationale of the prohibitions of section 71A(1) and (2), as they protect the suspect or an accused person from being identified as an alleged sex offender before there has been a guilty finding or a court has determined that there is sufficient evidence to send the accused to a higher court for trial. The government has kept the prohibition against any publication that identifies a complainant or invites an inference as to the identity, unless the individual is an adult and wants to identify themselves. An added protection in this regard is the requirement that police, as we say, make all reasonable efforts with this particular amendment to inform the victims that the defendant's name can be published.

I had a number of submissions, and I expect other members, particularly the member for Badcoe, will have either reviewed or had put to them submissions about the importance of victims being aware of the publication coming up and having an opportunity to submit a case. Clearly, unlike the Bernie Finnigan case, in which there were no identified victims who were either related to or known to him, these were photographs and disseminated publications of children who were not, it is my understanding, identified as having any relationship with Mr Finnigan but who became victims by virtue of their exploitation by being photographed and videoed in compromising circumstances—states of nudity, states of sexual acts and the like—all of which is, most fair-minded people would appreciate, simply not acceptable. It is certainly against the law. The viewing, dissemination, access and distribution of it are all completely illegal.

People sometimes even now say to me, 'Why is this as bad as touching or physically assaulting a child?' The reason is that somebody is photographing that child, somebody is exploiting that child, somebody is placing that image of those children for profit and distributing it for their own financial gain. That exploitation of children is completely unacceptable. That is why our exploitation laws, in addition to assaults on children, are at the very highest level of scrutiny and penalty. I just want to say again how important it is that we protect the children, protect the victims, including those who are photographed and have their images spread around the world for the profit and gross benefit of those who want to access it.

We also had a number of submissions and support from the Carly Ryan Foundation, Australia's Right to Know coalition and from media organisations. We had a very wide area of consultation, including the South Australian police, as I have referred to before, victims' groups, the Chief Magistrate, the Office of the Director of Public Prosecutions, the Courts Administration Authority, the Law Society, the Legal Services Commission and the Council for Civil Liberties.

Can I just advise the house, because this is always a question that is asked in relation to suppression orders, of some other good news for South Australia, and I will be very brief. Over the last 10 years there has been a steady increase and now a steady decrease in the number of suppression orders in South Australia. We were known for a long time as being the suppression state. I want to tell members how happy I am that, in looking at the 2018-19 reductions, last year (up to 30 June 2019) the total number of suppression orders was 171. From mid-January to July, it is about 117. In any event, we are on a steady reduction. That is a good thing.

We are now the third highest—Victoria is way out in front as being the suppression state. Whilst that is not a good thing, the fact is we are now down to I think a much more acceptable level of secrecy orders, as they have often been described. As the member for Badcoe is also a former journalist, she would appreciate the frustration of the imposition of secrecy as a result of suppression orders.

I have always taken the view that suppression orders do form an important part of the protection of our whole process. They particularly need to protect victims, for example, where the child who has been exploited or abused actually has a relationship with the offender. It might be a daughter or a neighbour's child or a niece or something of that nature. The disclosure of the name of the accused will immediately make public the likely victim, especially if it is the only child in that family household. We obviously have to balance all of that, and that is being considered in this legislation, but in addition to that we still need to have the protection of them.

I have just found that figure for those who want to follow this. In the nine months from 1 January to 30 September 2019—so it takes in the whole extra period—it is still down to 117 for Tasmania, 251 for Victoria in the same period and 120 for New South Wales. We are third in the latest data that we have. I am certainly pleased to see that there has been some arresting of what was otherwise, I think, an unacceptably continuing increase in suppression orders, which really were not justified given the profile of the types of offences that we had. With those few words, again, I thank the opposition for its support and indicate that we will be accepting the amendment.

Ms STINSON: I might take this opportunity to make a few remarks on this matter. Of course, as the Attorney has mentioned, the amendment that we see come down from the other place is the result of questioning in this place in the committee stage, and I think that is worthy of noting.

There were some detailed questions asked by me and others about the operation of the Evidence (Reporting on Sexual Offences) Amendment Bill, and I think this really is a good demonstration of the importance of having a strong opposition that does actually have a careful look at legislation that is put forward, runs the fine-tooth comb over it and really does assess it from all possible perspectives, in this case looking at it from the perspective of victims and looking at its operation on the ground and how the amendments that are put forward and the intention of those amendments is actually going to be reflected in the operations and the operational elements of the implementation of such an act.

I think that this is showing our parliament at work, showing that the processes of the parliament are resulting in rigorous outcomes and outcomes that are beneficial for our broader community. Because of those questions that I and others asked at the committee stage, we had the opportunity to formulate amendments that were put to the other place. Members of that place had the opportunity to have a look at them, and I believe the government adopted the amendment which we see coming back to us today. This amendment talks about all reasonable efforts being made to notify the victim about the expiry of a prohibition applying in respect of the publication of an accused person's identity.

The Attorney does make a good point in that you may well expect that that process would be adopted by the DPP, by police and by others who would be administering such cases and looking at such matters. However, in my experience covering the court system, it is important that these things are written down, and something like this is important to insert into legislation. I certainly do not think that this reflects any sort of lack of trust or the belief of any sort of laziness on the part of those who are involved in these cases.

In fact, it is quite the opposite: I think that our police and lawyers who are working in the justice system are doing an incredible amount of work, and this just spells out clearly what the obligations are and, if you like, reminds people working in that sector of the need for, and the importance that this parliament places on, victims being involved in such critical decisions or being notified of such critical decisions as to whether the accused person in their matter may have their identity revealed and any possible implication that may have for a victim.

I think it is important that that it is enshrined in legislation, and, of course, I and my colleagues on this side are certainly delighted to see that this amendment has been adopted in the other place and has come back down here and hopefully will have the support of the majority of this place to be entered into the act.

As many would know, in my past career I did quite a deal of work with victims of crime. In fact, a lot of the work of journalists is working with victims of crime whether that is at the time that a crime is committed or throughout the court process. Often, we do become very close to those victims. It is our job to understand the victim's experience and to be able to convey that to the wider public as part of a fair and balanced report of matters in front of our courts and in front of our justice system.

Of course, that does mean, I think, that journalists, as well as many others in the justice system, are in quite a good position to understand the impact of crime on victims, the importance of those victims having as much say as possible—there are some limits to that, of course—and as much information and involvement in the judicial process as can reasonably be had. For many victims, it is a very disempowering process to go through the courts system. Some do find it empowering, but often that depends on the outcome at the end.

In recent years, there has been a movement to involve victims more in the judicial process, to be more enlivened, I suppose, to the need for them to understand what is happening and to have a say wherever possible in what is happening so that they do not feel like they are being excluded from the very process that is meant to deliver justice to them and our community more widely.

From my work as a journalist, I have some knowledge about the impact of the court process on victims: the great uncertainty that goes with it, the long delays, the frustration, the stress and, really, the retraumatisation of victims through the court process. I think that this is one measure that can help to empower victims, to make sure that those who are working in the justice system turn their minds to the fact that not only should they but they are now actually obligated by law to try to locate victims and make all reasonable efforts to notify them about the expiry of a suppression order, so that they might seek their views on it or, at the very least, a victim realises that a suppression order or a statutory suppression will be removed and that may cause the matter to be in the media.

Practically, aside from meaning that a victim can give input to the police or the DPP about whether they think a suppression order should be extended, it really equips a victim to be able to take measures to protect themselves and to be able to say, 'Okay, this is going to be on the news tonight. I'm not tuning in to the news tonight. I'm going to protect my mental health and that of my family and make sure that, as much as possible, I'm not exposing myself to that retraumatisation through this process.' That is why I think this is really important and why I am so encouraged by the fact that this amendment has cleared the other place and hopefully will go through this place as well.

I also want to reflect on some of the Attorney's comments. I have to say I am very encouraged by her comments in regard to secrecy and openness amid allegations of sexual wrongdoing. I actually think that that is spot on. Certainly, when I was a journalist I was one of those people saying that suppression orders and that level of secrecy were not acceptable and that we should have a much greater standard of openness.

I think at this time, with where we find ourselves with the events of mid-December, we should be reflecting on those values and we should be trying as a parliament to make sure that we have openness and transparency about the things that happen in this place. There is obviously going to be a matter before the court concerning the member for Waite and we should be—

The Hon. V.A. CHAPMAN: Point of order: this again transgresses the fact that there is a police investigation and there are no charges that we are aware of. For the member to assert here that there are obviously going to be matters coming before the court is not something that is appropriate to be canvassed in this chamber.

Ms STINSON: I am happy to rephrase that.

The Hon. V.A. CHAPMAN: Thank you.

Ms STINSON: We understand, of course, and it has been publicly reported, that the member for Waite has been reported.

Members interjecting:

Ms STINSON: That's correct, yes. The police have reported the member for Waite, which I think does throw up these issues of openness and transparency regarding matters that touch on issues of sexual misconduct. I think it is important, the sentiments that the Attorney expressed, albeit to do with a different circumstance, that we as a house reflect on the need for openness and transparency when such matters are raised and that we hold ourselves to a high standard in relation to those. I am certainly on record in my—

Members interjecting:

The ACTING CHAIR (Mr Cowdrey): Order!

Ms STINSON: To be fair, I have made my comments clear. I am certainly on record in my time as a journalist saying that there should have certainly been greater openness and transparency about those matters in the past. In fact, I was standing there in court, in the Magistrates Court, in the District Court, putting forward my applications for suppression orders to be removed.

I am certainly supportive of this legislation, and I am certainly particularly supportive of this amendment, which I think really does provide empowerment for victims and formalises the operational elements to ensure that victims are advised, if not involved, in decision-making around the application or withdrawal of suppression orders. I think that that is a very good thing. I would commend the bill with this amendment to the house. It certainly will have the support of all those on this side of the house.

The ACTING CHAIR (Mr Cowdrey): I will give the member the benefit of the doubt that there was a question contained in that contribution.

Motion carried.