Evidence (Reporting on Sexual Offences) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (17:26): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, I rise to introduce the Evidence (Reporting on Sexual Offences) Amendment Bill 2019.

The Bill gives final effect to a 2011 review by the Honourable Brian Martin AO QC, by substantially lifting existing restrictions against reporting on sexual offences. These limitations do not apply to other types of offences.

The former Government declined to accept the recommendations of the reviewer in full, instead leaving the option open for the community to be in the dark about serious sex offenders.

In 2012, it was left to the then Shadow Attorney-General—the Honourable Stephen Wade MLC—to try to progress the recommendations of the review and encourage transparency in these proceedings. With the former Government being allergic to transparency, we now see amendments before the House today to achieve the recommendations of the Review and provide comfort to the community in allowing publication of identification for sexual offenders and their crimes.

At the moment, section 71A of the Evidence Act 1929 prohibits the publication of information about alleged sexual offences unless and until there has been a finding of guilt in the Magistrates Court, or the charges have been committed for trial to a superior court. The effect of this restriction is two-fold. First, it prohibits reports regarding such proceedings (for example, publishing details of evidence given in the proceedings, or any statement which might reveal the identity of a person who has been, or is about to be charged with a sexual offence). It is this aspect of the prohibition which is significantly changed under the Bill.

Second, section 71A also currently prohibits the publication of any statement or representation by which the identity of a victim of a sexual offence is revealed or might reasonably be inferred. Under the current provisions, this prohibition exists regardless of the status of the proceedings against the accused (though an adult victim can exercise their choice for their identity to be revealed). This protection is maintained under the Bill.

In the case of a person who is yet to be charged, the Evidence Act preserves the integrity of an on-going police investigation and any potential criminal proceedings that might follow that investigation. For instance, publicity about possible charges before proceedings have commenced might compromise the veracity of witness accounts where there are multiple alleged victims who may contact each other about the allegations before providing statements to police. This could compromise the investigation or risk an attack on the complainants' credibility. The Bill has been designed to ensure that this important protection still exists, by ensuring that there can be no reports of an impending arrest before it has occurred (and indeed, until after the first court appearance).

However, there have been a number of high-profile prosecutions which have demonstrated the inherent difficulties with restrictions of this type if they persist for the duration of committal proceedings. Increased digital access to information published outside this State has made the restrictions less effective in ensuring the anonymity of those charged with sexual offences. Significant charges arising in South Australia may be reported on in a number of other jurisdictions, with the details being shared on social media and other digital platforms, while news services in this State would be restricted for however long committal proceedings might take.

For some time, survivors of sexual abuse and victim advocate groups have been championing for victims' right to be heard at any stage of proceedings, should they wish to speak publicly about what they allege the defendant did. It is the choice of individual adult victims whether they identify themselves in doing so. Clause 4(2) of the Bill permits them to have that voice, by lifting the prohibition on identifying a defendant charged with a sexual offence after the first court hearing in relation to that charge.

The principles of open justice require that court proceedings should be conducted publicly and in open view. This is important for public confidence in the administration of justice, as it demonstrates the integrity and independence of criminal proceedings by ensuring that they can be scrutinised and analysed.

These principles must be balanced, however, against the need to ensure that publication of the details of alleged sexual offences does not inadvertently identify an alleged victim of those offences, or jeopardise on-going investigations. That is why clause 4(2) of the Bill has amended the prohibition rather than removing it outright.

By prohibiting publication of a defendant's identity until after the first court appearance (which is the 'relevant time' according to clause 4(4) of the Bill), the court can exercise any necessary oversight about whether identifying the accused might also risk identifying an alleged victim. Without the protection continuing up until this time, merely publishing the Court case list with the defendant's name and the charge might be enough for the identity of an alleged victim to reasonably be inferred, in breach of section 71A(4) of the Act. Once publication of that sort occurs, the information is in the public domain. In the digital era, it is almost impossible for that sort of damage to be undone. Accordingly, the Bill allows for any such issues to be explored at the first court hearing, before publication of details of the charges can occur.

Preventing publication of these details until after the first appearance in court will also enable an application to be made for a suppression order under section 69A of the Act. This will ensure that parties can be heard about whether identifying a defendant may, for example, cause prejudice to the proper administration of justice by impeding an ongoing investigation into similar complaints against the same defendant. The Court can then exercise proper oversight in relation to proceedings before it.

The Government has carefully considered the implications for both victims and accused throughout this process.

As I have highlighted, there have been several court cases over recent years which exposed the public's right to know an alleged offender's identity, highlighting the necessity for our laws to be both contemporary and in line with community expectations in this important area.

For those accused, as Mr Martin stated in his report, leaving cases of serious sexual offending in the dark has the tendency to promote rumour and innuendo, which in turn can create an atmosphere prejudicial to the accused person whose identity is suppressed.

For victims, whom we must protect and assist at all costs, survivors of sexual abuse and victim advocate groups have been advocating for some time for victims' right to be heard at any stage of proceedings, which is undoubtedly aided by this Bill. Further, this Bill enables the flow of information, particularly around child sex offences, with that early publication of identity promoting the possibility of witnesses coming forward.

Importantly, I must reiterate, the changes proposed here do not impact on the protections already offered under the Act, which protect the identity of the victim of a sexual offence and anything that might reasonably identify them to the public.

Put simply, openness and transparency should be the default position of our justice system and I am pleased to progress the recommendations of the report, which was left incomplete by the former Government.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Evidence Act 1929

4—Amendment of section 71A—Restriction on reporting on sexual offences

This clause amends section 71A of the Act as follows:

subclause (1) deletes section 71A(1) which currently operates to prohibit the publication of certain evidence and reports relating to proceedings against a person charged with a sexual offence unless the accused person consents to the publication;

subclause (2) amends section 71A(2) to retain the existing restriction on publication under that subsection in respect of an accused person but only until the relevant time, being the time at which the accused person's first appearance in a court in relation to the charge is concluded. The definition of relevant time is proposed to be inserted by amendment to section 71A(5). Section 71A(2), as amended would then restrict the publication of any statement or representation that would reveal the identity of a person who has been, or is about to be, charged with a sexual offence or from which the identity of such a person might reasonably be inferred, until the conclusion of the accused person's first court appearance;

subclause (3) deletes sections 71A(3) to (3e) (inclusive). These provisions currently give a court the ability to make a publication order varying or removing the prohibition under sections 71A(1) and (2) where it may assist in the investigation of an offence or is otherwise in the public interest;

subclause (4) substitutes a definition of relevant time in the place of the current definition of relevant date in section 71A(5).

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