EVIDENCE (SUPPRESSION ORDERS) AMENDMENT BILL

Introduction and First Reading

The Hon. S.G. WADE (16:09): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. S.G. WADE (16:10): I move:

That this bill be now read a second time.

South Australia has a reputation for being 'Suppression City', the suppression city and the suppression state. One example of South Australia's more restrictive approach is the treatment of sexual offences in the Evidence Act. Section 71A(1) and (2) of the Evidence Act 1929 prohibits the publication of evidence given in proceedings against a person charged with a sexual offence and the identity of a person who is charged or about to charged with a sexual offence until the accused has been committed for trial or sentenced or in matters determined summarily until a plea of guilty is entered or a finding of guilt is made following a trial.

These provisions put a presumption on secrecy rather than transparency and treat offences of a sexual nature different to all others. In July 2011 Justice Brian Martin, former chief justice of the Northern Territory, was appointed by the government to undertake an independent review of these provisions. His report was completed on 30 September 2011 and tabled on 21 November 2011. His recommendation was that section 71A(1) and (2) be repealed. I will quote a couple of passages of Justice Martin's report:

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 effected 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'.

Justice Martin continued:

...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 sexual offences in any cases which attract media interest. Publication of identity might also promote the possibility of witnesses coming forward.

The government rejected the primary recommendation of the Martin review and announced that it will merely amend the act to give the courts the power to lift suppression of the details of people accused of sexual crimes and details of the proceedings if there is a strong public interest in doing so. The government is still proposing to maintain the presumption of secrecy. However, this is not the first time these provisions have been reviewed and considered, and it is not the first time that the opposition has called for the veil of secrecy to be lifted.

In 2006, the Legislative Review Committee reviewed and reported on the Evidence Act 1929. Again, the opposition supported reducing our state's reliance on suppression orders. At that time we committed to (1) the automatic cessation of suppression orders following the conclusion of matters in court (after the disposal of appeals), subject to a determination at that time that it is in the interests of justice to maintain them; and (2) establishment of a central register of suppression orders that is accessible to the public, MPs and the media such as the register that currently exists but that is only available upon request at the court registry.

This bill proposes to increase transparency and make justice more accessible. Under the bill the courts would retain the 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.

It also proposes to put an onus on the courts to make the register of suppression orders publicly accessible on the internet, except for information that cannot be published under the terms of the suppression order. This is the same information that is currently provided to media organisations upon payment of a fee so that they can comply with their obligations not to publish suppressed information under the law. The opposition is simply making that publication more accessible to both the media and the public.

Specifically, the bill will (1) remove subsections 71A(1) and (2); (2) make suppression orders automatically expire at the conclusion of proceedings, except where a court decides it is in the interests of justice to maintain them; (3) require the registry of suppression orders to be published online; and (4) require the courts to give reasons for the imposition of a suppression order.

I have introduced the bill to put it on the public record for consultation. I would appreciate stakeholders and South Australians generally taking the opportunity to consider the proposed bill and provide feedback on it. Having taken into account feedback, I will seek to move to the second reading consideration of this bill after the winter break. I commend the bill to the council.

Debate adjourned on motion of Hon. I.K. Hunter.