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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-05-03 Daily Xml
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Ministerial Statement

MEMBER OF PARLIAMENT, CRIMINAL CHARGES

The Hon. M.D. RANN (Ramsay—Premier, Minister for Economic Development, Minister for Social Inclusion, Minister for the Arts, Minister for Sustainability and Climate Change) (14:04): I seek leave to make a ministerial statement.

Leave granted.

The Hon. M.D. RANN: On Wednesday 20 April 2011, a member of this parliament was arrested and charged with serious criminal offences involving the alleged possession and procurement of child pornography. It must be said at the outset that these are allegations that are now the subject of court proceedings and it would be improper for me or for anyone else to comment on the specific allegations involving the member of parliament.

Like other citizens, members of parliament must be accorded the presumption of innocence and have proceedings against them dealt with fairly and not tainted by inappropriate or prejudicial commentary. I will therefore not, on legal advice, discuss the specific case against the member.

Of course, leaving aside this specific case and speaking generally, cases involving the sexual abuse of children, including child pornography, justifiably provoke strong community reactions, strong community condemnation, strong community repugnance. It is only natural that all decent people are shocked and offended by the sexual exploitation of children. In cases where allegations of sexual exploitation of children are proven, all of us are sickened by such repugnant and abhorrent criminal behaviour. In my view, any person convicted of a sexual offence against children is not fit for public office.

As a government, we acted quickly, strongly and decisively to strengthen South Australia's laws to protect children from sexual exploitation and to punish the individuals who offend against children. In our first term, the government completely overhauled the criminal law relating to child pornography. We wanted to make sure that the police had the power to deal with child pornography and we wanted to increase penalties.

This government increased the seriousness of child pornography offences, which means that the police now have broader powers to investigate these types of offences, including using covert surveillance. The maximum penalty for possession of child pornography was increased by this government from one year to five years for a basic offence and to seven years for an aggravated offence. We also changed the law so that those who continue to offend face even harsher terms of imprisonment of up to 10 years.

The definition of child pornography has been broadened to ensure that those who exploit and corrupt children through pornography do not escape the net of the criminal law. The government's tough stand on child pornography is part of our broader campaign to protect the public, especially children, from sexual predators. The government campaign against those who offend against children includes:

Supporting the removal of the statutory limitation against the prosecution of child sexual offenders for offences that occurred before 1982. This measure alone has seen numerous offenders convicted and has brought justice for their victims. It seemed to us incredible that people who were involved in these practices before 1982 could get off scot-free while those after faced the law. We have changed that law for ever; anyone involved at any stage is liable for prosecution. Those offenders who lived in comfort because they believed they would never be prosecuted now fear the knock of the police on their front door.

Introducing a child sex offender register to track offenders and safeguard children from known offenders, including those involved in child pornography.

Enacting laws to protect runaway children from exploitation by predatory adults.

Making serious repeat offenders liable to even harsher penalties through 'two strikes' legislation.

Changing the law to make sure that those convicted and sentenced now for sex offences committed years ago are punished, by current tougher standards being applied by the courts, not the standards that applied in the past.

Increasing the maximum penalty for offenders who have unlawful sex with a child under 14 from seven years to life imprisonment; previously, the maximum penalty of life applied only in cases where the victim was under 12. I reiterate that the allegations against the member of parliament are not proven and the individual concerned, like all citizens, is entitled to the presumption of innocence. The presumption of innocence is one of the foundation stones of our criminal justice system and many of our democratic rights depend on that principle.

The matter is also sub judice and therefore subject to the law of contempt. Quite apart from the legitimate interests of the charged person to a fair trial, commentators, media and politicians alike should refrain from saying anything about the case that may prejudice the prosecution case and thereby risk a stay of proceedings.

As the charges against the member relate to sexual offences, it is unlawful at this stage of the proceedings to publish anything that reveals the identity of the person or anything from which the identity of the person may reasonably be inferred. That prohibition applies until the accused is committed for trial, in the case of an indictable offence, or when guilt is established, in the case of an offence heard before a magistrate. The accused may be identified if the case is dismissed or lapses for want of prosecution or any other reason.

Under section 71A of the Evidence Act, it is an offence to publish information in breach of this prohibition, carrying a penalty of a fine of up to $10,000 for a person or $120,000 for a body corporate. Comparable laws, automatically prohibiting the publishing of the accused's name in sexual cases, exist in other Australian jurisdictions, namely Queensland and the Northern Territory, but it does not apply in other Australian states.

Over the past week, I have read and heard much nonsense about the origin of this prohibition against identifying an alleged sexual offender at this early stage of criminal proceedings. One ill-informed and malevolent commentator suggested that the law was introduced over three decades ago by politicians to avoid the risk to themselves of being named. This is not only completely untrue but a malicious slur of the worst kind.

The law against the publication of anything tending to identify an accused person in a sexual case has its origin in the recommendations of a highly respected and eminent judge of the South Australian Supreme Court, who went on to become South Australia's first woman governor. I am, of course, referring to the Hon. Justice Dame Roma Mitchell AC, DBE, CVO, QC.

In March 1976, Justice Roma Mitchell QC (as she then was) delivered the special report into rape and other sexual offences of the Criminal Law and Penal Methods Reform Committee of South Australia, otherwise known as the Mitchell Committee. The current prohibition against identifying the accused arose out of the recommendations of the Mitchell Committee.

So far as I can establish, the legislation arising out of this recommendation of the Mitchell Committee received bipartisan support when introduced into parliament in 1976. So far as I am aware, the prohibition on publication operated with the support of subsequent governments, including the Liberal governments of David Tonkin, Dean Brown, John Olsen and Rob Kerin.

In fact, it is within my memory and experience, and, I am certain, within the memory and experience of others, that this is not the first occasion that a member of this parliament has had the protection of the law prohibiting his name from publication following charges involving sexual offences. In an earlier case, the law was respected by all political parties and the member, who was subsequently acquitted, had the benefit of that law.

So, as far as I am aware, the current Leader of the Opposition has not now or previously called for the prohibition to be removed; that is why I was somewhat surprised and alarmed by some of her public comments last week. Those comments were repeated by her colleague the member for Unley. But the Leader of the Opposition as a lawyer should know better than saying something that could lead to a breach of the law. She should not on the one hand purport to gag her colleagues from saying anything about the case and then herself make public statements which she knows cannot be responded to without breaking the law. In my view such an approach lacks sincerity—

Mr Williams interjecting:

The SPEAKER: Order!

The Hon. M.D. RANN: —and is not befitting an officer of the court, a member of parliament or a person who seeks to lead the state. I accept that the—

Mr Williams: What did she say?

The SPEAKER: Order!

The Hon. M.D. RANN: You know exactly what she said. I accept that the inability to name the accused has caused public disquiet. It may well be that the rationale for not publishing an accused's name is no longer persuasive or does not have public support. The fact that the prohibition lapses when the case is dismissed or not proceeded with calls into question the rationale for such a prohibition.

The relatively recent development of the internet and especially social media has meant that the name of an accused is often published extensively within a very short time. Such publication is difficult to monitor and makes enforcement virtually impossible. In those circumstances the rationale of the prohibition is further called into question.

In view of the public disquiet, the significant time that has elapsed since the law was introduced, and that most other jurisdictions permit the identification of alleged sexual offenders, I have asked the Attorney-General to arrange an independent review of the law in this area.

I am particularly interested in hearing expert advice and community views about whether the prohibition should be abolished, or not, and, if so, whether other measures are required to protect or restore the reputation of those subsequently acquitted. I would also wish to hear advice and community views about what, if any, safeguards are needed to protect the public interest if the prohibition is continued.

I wish to make it clear that the review will not affect the law relating to the prohibition of publication of information that identifies, or tends to identify, the victims of sexual offences. The protection of victims will remain paramount and their privacy will continue to be protected. The Attorney-General will report on the outcome of the review to this house.

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