HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
2019-10-29 Daily Xml
Contents
Pdf Xml

Bills

Evidence (Reporting on Sexual Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2019.)

Mr TEAGUE (Heysen) (11:02): I rise to support the bill introduced in the house by the Attorney. It is a short bill. The operative provision, clause 4, relevantly amends the section of the Evidence Act that deals with restrictions on reporting in sexual cases.

For some context, this act is dealing with that part of part 8 of the act that deals with the publication of evidence generally and, specifically, in division 3, the restrictions on reporting on sexual offences. Again for some further context, this is a matter that is really about balancing the rights of victims to be able to tell their stories and to be supported through the criminal justice process, with the interests of justice in preserving anonymity at the appropriate stages. Secondly, and importantly, by way of broader context, this is about furthering the government's commitment to an open and transparent system of justice in our state.

So there are two very important limbs to this reform: one is about better understanding and then better implementing measures, practically, to support victims (I will come back to that in a moment), and the second is to advance commitments to open and transparent justice in this state. That is something that I applaud this new government for getting on with. It is yet another example of the stark contrast between the approach of this government, very early in its term, and the intransigence of the former government in the face of a report prepared on this matter, now nearly a decade ago, by the Hon. Brian Martin AO, QC.

The 2011 Martin review recommended that there be a substantial lifting of the existing restrictions against reporting on sexual offences. Among other things, the Hon. Brian Martin recommended that section 71A(2) should be repealed altogether. In conducting his work, Mr Martin was quick to acknowledge that there is no simple right answer in these circumstances. There are the interests of both the processes and the participants to be balanced and measured. It is ground that ought to be the subject of reform, and it ought to be navigated with care. The objectives of open and transparent justice and an advance in terms of the support that we are able to provide to victims are worthy ones indeed.

To reflect on the question of the work that this reform does with respect to victims, I want to focus for a moment on the journey that justice systems have been on now over a long period of time. We have seen a hurry-along in recent years in relation to the opportunity for victims to have access to justice, and in recent times we have seen examples of that in relation to the lifting of limitations of time in which to commence action.

In another space, this is about the opportunity for victims to be able to deal with issues that are the subject of matters before the courts, to be better able to articulate what they have experienced and to be able to be listened to and understood in terms of the experience they have had. The reform in this space is very focused on the experience of victims and their opportunity to deal with it and recover.

While talking about the history—it is almost a decade since Mr Martin's report—I want to acknowledge the work done in opposition by the former shadow attorney-general Stephen Wade when he was in that role. It was left to him, in his role as shadow attorney in 2012, to push along the response to the Martin report to make moves towards better rights for victims and towards transparency.

That was, unfortunately, in circumstances where the former attorney, the former Labor government, chose not to take action in line with the Martin report recommendations not just immediately after the Martin report but throughout the balance of the former government's time right up until the end in 2018. The result was that nothing was done by the former government. Section 71A of the Evidence Act remains with all the difficulties that that entails for victims in relation to reporting restrictions. It is necessary now, in the early stages of this government, to get on with doing something about it.

The operative clause of the bill, clause 4, provides that rather than impose a blanket restriction on reporting, as is presently the case, there will be the possibility to report on these matters. Importantly, the necessary oversight of the court with respect to the effect of reporting on proceedings is preserved, as is the express preservation of the victim's opportunity to consent or otherwise to the reporting of their details. There may be circumstances, for example—and this has been adverted to by the Attorney in moving the bill—where the reporting of an accused's name at an early stage or even by publication on the daily court list might have the inevitable effect of identifying a victim, and in those circumstances there is preserved the opportunity for the court to provide oversight of the timing of that publication and the nature of that publication.

It is also to be observed that by preserving the oversight of the court at an early stage there is also preserved the opportunity for applications pursuant to 69A to be made if an order for suppression is to be sought. So we see a retention of the court's oversight in relation to publication and also the opportunity for open and transparent process at an early stage that has not been there. I should observe also that, prior to charge, the process of police investigation and so on is unaltered. There is, properly, no reporting to be made in the course of police investigation.

From the point of view of a practitioner, I think it is also important to note that when we deal with these matters of law and legal process it is central to all aspects of law and legal procedure, of course, that the practical as well as the theoretical is very much to be borne in mind and in play. It is all very well to have a theory about what is ideal, let alone to balance competing interests, but we see in this space that the advent of social media, electronic communications and widespread access to instantaneous communication of material that can be spread far and wide very quickly mean that, as a practical matter, the reality is that laws that would seek to suppress identities or details can often and very easily be subverted.

That is not a reason to give up, and if there are reasons why we should pursue ensuring that there are restrictions on reporting certain matters, then we do so and we confront the modern environment. However, it is well to note that in many respects, as a practical matter, it has become much more straightforward—if you like, much more open to potential contravention—to report these details in any event. The reform will leave control in the hands of victims about the way in which they go about telling their story and it will ensure that the public can have the confidence of an open and transparent justice system.

I also want to acknowledge the work in this regard that has been done by victims' rights groups and victim support services, as well as the reporting that has been done by those in the media who practise and report in this area. I bring to the attention of members, for the purposes of this debate in particular, the work of the chief court reporter for The Advertiser newspaper, Sean Fewster, who for some time has given a considered account of the landscape being traversed in this area—indeed, all the way back to 2011—in the context of what happens to be particularly topical at the moment in relation to the public's right to know. This is work that Mr Fewster has been reporting on for some time and I credit his work in this regard.

I will also take this opportunity to note some of the observations of victims in relation to the reforms. I think it is fair to say that there is widespread if not universal welcome for the reforms from victims' groups. I note that the founder of Bravehearts, Hetty Johnston, has made some observations in relation to the likely wishes of victims and how victims might continue to elect to participate in proceedings. It may be that most victims will continue, as Ms Johnston observes, to wish to remain anonymous.

That may be a matter that evolves in the context of greater openness and transparency because, of course, in shedding light on these matters we wish to serve the interests of victims rather than to unduly draw attention to an offender or alleged offender simply for the sake of doing so. If there is a purpose to be served, particularly from the victim's point of view, then that may, as Ms Johnston has observed, assist in the recovery and the process of dealing with the experience that a victim has suffered.

I also acknowledge in particular the voice and engagement of my constituent and friend, someone I have worked with over a period of years now, Sonya Ryan, the founder of the Carly Ryan Foundation. Ms Ryan has welcomed this reform. She has noted, as I have in my remarks today, that the reform is long overdue, and she has referred to the long period of advocacy that has been engaged with by she and others who have spoken out for victims over a sustained period of time.

There is, of course, the other side of the coin, the public reporting, identifying an alleged offender in the course of the process. I note that there are a number of notorious examples—if I might put it that way—of predators and notorious offenders in this space whose identities were hidden for many months, if not many years.

They include, I am advised, Mark Christopher Harvey, whose identity was kept secret for more than seven years; Mark Errin Rust, whose identity was kept secret for five years; Vivian Deboo, whose identity was kept secret for five years; Garry Francis Newman, whose identity was kept secret for more than 1,000 days; Bernard Finnigan, whose identity was kept secret for 500 days; Roman Heinze, similarly for 450 days; and Gene Bristow, whose identity was kept secret for a long period of time. The reforms will change the landscape in which these matters are progressed, and I commend the bill to the house.

Ms STINSON (Badcoe) (11:22): I rise today to speak to the Evidence (Reporting on Sexual Offences) Amendment Bill and to indicate that I am the lead speaker on this bill. I also rise as a person in this house with probably the most experience in reporting on court cases, especially sexual offences, and the person who in this place has probably read section 71A more times than many others.

The Hon. V.A. Chapman interjecting:

Ms STINSON: Absolutely. As a specialist court reporter, obviously I spent every day looking at this legislation, and I have risen to my feet many, many times in our Magistrates Court, District Court and Supreme Court to argue on suppression orders on a huge range of cases over my career. I have also been among those in the South Australian media who have been speaking out loudly on the changes required in this area for more than a decade, so I am very pleased to be rising to my feet today and to be speaking on this bill.

Labor will support the bill. However, we reserve our right to introduce amendments to this bill in the other place, and I will provide some further detail on that later in my contribution. The bill amends the Evidence Act 1929 and deletes section 71A(1), with which I am very familiar, which restricts the publication of the identity of a person charged with a sexual offence, unless the accused person consents to this publication—that is, the accused person who has to consent. The bill also amends section 71A(2) to retain the existing restriction on publication in respect of an accused person but only until the relevant time, which will be when the accused person's first appearance in a court in relation to the charge is concluded.

I have had the privilege of reporting in jurisdictions across Australia in my career as a journalist. Upon coming to South Australia, first working with the ABC, I immediately noticed the very different legislative settings when it came to court reporting and reporting on sex offences. For one, it is a lot more complicated than in other jurisdictions in which I have worked, which include Western Australia, the Northern Territory, New South Wales, the ACT and Victoria.

Frequently, journalists in South Australia would have to ring lawyers based in Sydney. Those lawyers would give us advice about what we could and could not report. More than a few times in South Australia we found ourselves, as journalists—sometimes as very young journalists—having to actually tell the lawyers in the Sydney legal teams that the legislation in South Australia was quite peculiar and quite different from what they would have been advising other reporters on in other jurisdictions. It certainly made for very time-consuming work and a lot of toing and froing between journalists and legal teams in order to correctly identify what could be published and what could not.

There is really no journalist or media outlet that wants to break the law in this area—that wants to get in trouble from breaking the law, at least—and so it is important, and journalists do take it seriously that they are abiding by the rules as they are, even though they may vehemently disagree with them. It has really just added another layer of complexity when it comes to journalists being able to do their job and being able to get information to the public in the most effective, legal and informative way.

One thing I did notice interstate is that journalists were left to use their own judgement to a far greater degree and would need to, for example, consider the protection of a victim and rules around identifying victims in order to figure out whether they should disclose the identity of an offender and to the extent that they could, or what sorts of details could be disclosed. So I feel like a great deal more trust has been invested in journalists interstate.

Certainly, there is no evidence of particularly adverse outcomes in other states. Of course, there is always the odd case of the rules not being followed, but there is really no evidence that journalists are incapable of understanding the rules and applying them when it comes to protecting victims, which is really a key and paramount consideration with legislation such as this.

I hope that through these changes we will see some more responsibility given to journalists who are experts in their field, especially when they are reporting on court cases as specialist reporters, as I was, to be able to understand what the legislation is and apply that to the benefit of the community at large but also keeping in mind the interests of victims and those concerned by cases.

This has been a very long-time frustration in this state. It makes little sense that a person can be charged with murder and, upon being charged, have their identity revealed. Of course, there are consequences to that. They personally come under scrutiny, the associations they have in the community and among their families come under scrutiny, and there is a level of awareness in the community about that person and what they are accused of having done.

There is really no great basis for treating differently someone who has been charged with murder, which is the highest offence that a person can be charged with, in contrast to, for example, someone charged with rape. Why should one enjoy the protection and anonymity while another who has committed a similarly serious offence be given a cloak of secrecy? For a long time it has vexed journalists why certain protections are afforded to people who have committed certain crimes but not others.

It has also enabled complexity for reporting on people with multiple charges. It is not unusual that a person may be charged with murder, for example, or violent offences but also sexual offences, and that has created some difficulty with different journalists in different media organisations deciding to describe matters in different ways.

For example, if a person were charged with both murder and rape against the same victim the media could either identify the offender and report the murder but have to suppress the allegations of rape—those would not be disclosed to the public, the public would have no knowledge that that person was accused of sexual assault as well as a violent offence—or a journalist could not reveal the identity of an offender and report both the murder and the sexual offence.

The difficulty comes when, as the matter proceeds through court, a different focus might be put on different elements of the case against the accused. Also, different media outlets might choose to highlight different aspects of that case. You could have one channel not identifying a person but going into detail about the violent and sexual offences they are alleged to have committed, and you could flick over to another station and find out the identity of the person and the fact that they were charged with murder but not anything to do with the sexual offences.

That has been a situation the media have had to deal with for quite some time, and it becomes even more complex when there is interstate coverage. A person, especially in this internet age, might be able to access Victorian coverage, in full, of a case that has happened in South Australia and piece it together with the information from South Australia. Essentially, that just negates the whole point of having this legislation in the first place.

Those are things journalists have had to take into account in South Australia in order not to fall foul of this law, to ensure they are reporting as fully as they possibly can to inform the public, but not getting themselves into trouble while they are doing it. Obviously, for a journalist in South Australia to tell a reporter in Victoria what to report or not report is an impossible and completely ridiculous task.

There have also been problems where a victim has wanted, and given their consent to, their being identified, but of course the consent of an accused has been required in order for the accused's identity to be revealed. I will go into a bit more detail on that later, but obviously that is not a good situation. Victims often come forward to the police and the media because they want the person who has allegedly abused them to be named and shamed, if you like, for people in the public and the wider community to understand what they, as a victim, have gone through and what their alleged offender has done. In the past, just the victim saying, 'I'm happy for my identity to be disclosed,' has not been sufficient.

There has also been an anomaly where dismissed cases could be reported and an offender's identity revealed even though for the previous months—or even years in some cases—the identity of that offender was not able to be disclosed. This has come about because of some provision that meant that the critical date was when a decision was made on the case. Essentially, you could have no coverage identifying an offender for an extended period of time, so no-one in the public knew who this person was who committed, for example, a series of sexual offences, but the moment those charges were dropped they could be identified.

This also grates with the original intention of this legislation. My understanding is that this protection came about many, many years ago because of an acknowledgement of the reputational damage that can be done to someone through false accusations of sexual misdeeds and charges relating to sexual offences. Obviously time has moved on since then, and I think the original genesis of this was men who were concerned that women may make allegations against them that were baseless and that their reputations would be damaged by that accusation.

Of course, no-one wants to see people who are innocent be accused of things they have not done, particularly things that may affect their reputation, their employment or their standing in the community. But at some point we have to find the balance between having trust in our justice system, having trust in our police to properly evaluate information and to assess whether there is a case to answer and having trust in our DPP that they will, likewise, look at matters before them and assess whether an accusation is spurious and baseless or whether it is something that rightly deserves to go before our court and be scrutinised.

It can lead to reputational damage for people, and unfortunately that is a price that we as a community agree to pay in order for our legal system to operate and for people to have their claims fully investigated. When we look at it, this historical protection of accused sexual offenders really does not make a huge amount of sense, considering a person's reputation would be seriously damaged by an accusation of murder just as much as their reputation might be damaged by an accusation of rape. It has always been a fairly unsustainable argument that has been put forward, and I am glad to see that the bill will address it.

It is important to remember that, despite the changes here, journalists will still be held to existing laws, and there are quite a few that journalists need to take into account and consider when they are doing their day-to-day reporting. There are many rules around the identification of victims. Certainly, I was concerned in relation to this piece of legislation that if, for example, we saw the same system apply as applies to all other charges—that a person can be identified upon being charged—that may pose some problems, because often the relationship between an accused and a victim is unclear. Indeed, the media often do not know who a victim is, therefore it is very difficult to judge at that early stage whether publishing the name of an offender, or indeed other details that might contribute to their identification, would actually be a problem. It is very difficult to even make that judgement.

However, I am comforted that the point at which the identification of an offender will be allowed is after a first court hearing, when issues of suppression and whether a suppression is needed can be properly ventilated. Hopefully, at that stage there will be a fair degree of detailed information that the DPP or a police prosecutor can provide to the court to ensure that victims are not adversely affected or indeed that the police investigation is not impinged by any identification of the accused person in the matter.

Suppression orders, of course, will still be able to be made. There will still be conditions within those suppression orders and we will still see suppression orders put in place where there is an argument that the offender's identity should not be revealed, for whatever reason that might be. It may be to do with the victims. It may be to do with the integrity of the police investigation and ongoing investigations, such as, for example, people needing to go through identification processes by looking at photos or police line-ups to identify an accused person. Obviously, it is very important that we protect those processes and the integrity of those processes if they are to be later relied on as evidence in court.

I imagine those suppression order conditions will still be fought out. I imagine that for people much like myself, who have spent quite a lot of time getting up and arguing the case before magistrates and judges, that process will certainly continue and that journalists will continue to fight the good fight to ensure that courts allow them to publish as much information as is reasonably available and as much information as should be disclosed to the public. The identification of children, of course, still has some very strict controls around it, and those should be maintained.

I am not sure if members are particularly aware of this, but there is also a requirement for journalists who have the great privilege of reporting on our court cases and our justice system to provide a fair, balanced and accurate report of the proceedings of a court. That is the privilege afforded to journalists—that they are allowed into courtrooms and judicial proceedings in both civil and criminal courts to provide a balanced report. That does not always mean that one side gets 50 per cent of the coverage and the other side gets 50 per cent of the coverage, but it does mean that, in order to maintain that privilege, a journalist must give a fair and accurate report.

That extends over the coverage of a matter. It is not simply one report for one day: it is the entirety of the journalist's coverage of that matter. Obviously, we see court cases where the prosecution rises and outlines their case, and that is the entirety of what happens on that day. It is pretty hard for a journalist to provide 50 per cent of the coverage to one side and 50 per cent to the other if all that happened all day is that the prosecution argued their case.

But it is expected that, when the defence rise and they spend their time presenting their defence—their opening addresses or evidence, or even closing addresses at the end of the trial—the media accurately report it and provide balanced coverage to ensure that an accused person is not simply hung out to dry by the media and that attention is also afforded to the defence put forward so that the public can have a more accurate, balanced and fair understanding of what might have happened in a court case.

There are certainly criticisms that can be made of that, and there are difficulties practically for media outlets achieving it, but it is important to know that that stipulation remains in our law and is something that journalists will still have to pay attention to. They still have to ensure that their reporting is fair and balanced when it comes to reporting on our court system. Importantly, that means covering when charges are dismissed or withdrawn and making sure that at least some prominence is given to that, particularly if great prominence has been given to the laying of a charge or a first appearance in court or a trial process. People are entitled to that, and it goes to the reputational issue I was discussing earlier.

Despite this legislation, it is worth noting, though not dwelling on too much, that an anomaly still exists in the timing of the naming of an offender for sexual offences in comparison with other crimes. As I mentioned earlier, with all other crimes, when a charge is laid, it is possible for the media to report that person's identity, to report the facts as they are known to the media and to report those issues publicly.

The difference with this is that there will be a later time before which the media cannot report the identity of an offender. We are not achieving here a situation where the reporting of sexual offences is going to be exactly the same as for a person who is accused of any other crime; however, I think there is an important reason why the legislation has been drafted that way. It goes to my key concern around this proposal, and that is the protection of victims.

Having this process in which a person's details are still suppressed, as they are in the current act, until the point of a first court hearing and a decision by a magistrate or judge on whether that person's identity can be revealed will hopefully provide the opportunity for victims to submit their thoughts on what the revelation of an accused person's identity will mean for them. That is a really important thing for us to get across. The experience of victims, in my experience, is incredibly varied.

Some victims would come to me, as a journalist, wanting the person who was accused of abusing them to be put on the front page of the paper as the lead story of the news and have their name all over radio. They absolutely wanted that person identified. For others, particularly in cases of familial sexual abuse, they did not want that to happen. They did not want criticism of their family. They did not want the media eye or the public eye on them as victims, and they feared that may be a result of identifying an offender.

I think we have to keep those considerations in mind because there is a lesser point to revealing the identities of offenders if, in that process, we do harm to someone who has already been victimised through an offence or an alleged offence. On balance, delaying the decision until later in the process is a good idea. The other thing it achieves is an opportunity for police and the DPP to put together information and to ascertain whether there will be any adverse outcomes for their work and investigations, particularly in matters of victims identifying offenders, and whether that may be disadvantaged in some way by the revelation of a person's identity.

I hope this will mean that the DPP—and the police, for that matter—will be properly resourced and have the capacity to consult with victims ahead of that first court hearing. It is an incredibly busy time in the formulation of a case. There is a lot going on, and in high-profile cases there is also a lot of intense media attention on matters. However, it is important that the DPP, police prosecutors and those working within the victim support units within the DPP and SAPOL are given the right tools and processes to be able to communicate with victims.

It is also very important that we know who the victims are because sometimes one or a small number of victims may come forward, but the police know that there are other victims out there. That is going to be tricky to navigate because sometimes those victims are not identified until later in the process and by then an offender's name has already been made public. Some consideration will have to be given as to how that is weighed up. Thoughts will have to be turned to how a prospective victim may feel about the identification of an offender. I will come back to that a little later, because there are obviously some good reasons, in the interests of victims, for disclosing the identity, particularly in terms of identifying further abuses that may have occurred.

We will obviously be moving to the committee stage, and I might just flag that I will seek some clarity around when this new clause will come into effect. There has been a grey area for media around the period before a person is charged. For example, when a victim comes forward and reports to the media that something has happened to them and that they intend to go to the police, or that police are investigating and a case is on foot, I understand that the explanation talks about the identity of a person who has been or is about to be charged with a sexual offence, but there is no real indication of when that point sets in.

Often, journalists do not know when a person is about to be charged with an offence. As such, there might need to be some clarity around that. Indeed, it would be helpful because in the past journalists have been operating in a grey area about when laws actually take effect on reporting the identity of people in relation to sexual offences and other crimes.

The shadow attorney-general in the other place has previously indicated in-principle support for this bill, subject to seeing the legislation. Of course, now we have seen the bill and, as I indicated earlier, Labor will be providing our support for this legislation. There is a powerful argument to be made that identifying the accused may result in additional victims coming forward. Certainly, that has been my experience with reporting on crimes for both Network Ten and Seven as a court reporter. We have seen instances where we have reported on offences and other people have either called the TV station or contacted the police and self-identified as victims of that offender.

Obviously, that has been a good outcome in terms of the fact that victims often feel, about sexual offences in particular, that they are alone or that they may have been the only victim of a crime. They have been able to seek justice, and an offender has been punished, penalised and held to account to the extent that they should be for offences that they have committed not just against a single person but against several people. I think that has been a good result in those cases that I was fortunate to cover.

Certainly, there have also been cases where the police have gone to the media and provided material, whether it be CCTV or other material—background information—and encouraged the media to report on certain matters. That is an investigative tool for them. They have wanted to put either a person's identity or the circumstances of a crime out there to elicit further stories and encourage further victims to come forward and assist with the prosecution of a person, or indeed that information has been put out there to try to get the offenders themselves talking and, if you like, dumping themselves in it and feeling the pressure that can be exercised through the media.

That can only be a good thing in ensuring that sexual offenders are identified, that their victims are given the support that they need and that offenders are punished to the full extent of the law. Revealing the identity of an offender is so important for some victims as part of the process of justice. Unfortunately, not everyone who goes to the police and who has charges laid against an offender ultimately sees that person convicted, and that can be for a broad range of reasons.

For victims of offences, the mere process of that person being outed publicly serves two great purposes. One is that they feel that that person has been held to account in some way, even if a conviction has not been secured in the court. The other is that a lot of the victims I have worked with, both as a reporter and through the Victim Support Service, have wanted to feel that they can do something. They want to feel that they are active and not victims so much as survivors and that they are activists in trying to make sure that a person cannot commit such offences again.

For them, it is about warning the public and making sure that a person's identity is known throughout their community so that that person—who will be released from prison at some point in the future, 99 per cent of the time—is known to the community and others in the community can take action to protect themselves from an offender, and that may provide some greater degree of community safety. Lots of victims I have worked with want to see that happen. They want to feel that what has happened to them has not been in vain and that they have been able to use a terrible crime against them to get some greater outcome and protect others from the terrible circumstances that they have been subjected to. I think that is really worth keeping in mind.

Certainly, there is one case, among very many, that stays with me and that is in relation to a gentleman I will not name, because I am not sure if this is retrospective, and certainly it is not law right now. Many years ago, in a small community, one man was charged with multiple offences and the community could not be identified as it was so small and would identify this man. Of course, he could not be identified either. There were something like seven or eight victims of sexual offending and there was clearly a pattern of behaviour and operation to identify his victims and exploit them.

A mother came to me about this matter and about what had happened to her children, and she dearly wanted this person exposed. She knew that even though this person went to gaol, he would be out and she did not want her community or any other community in South Australia or Australia being victimised by this person in the future. It was a great sadness to her that he could not be identified because, even though he had gone to gaol, she felt that upon his release he still posed a threat and could do the same thing again.

She felt that the most powerful way to guard against that was not necessarily parole conditions or the types of charges laid or anything like that but that her community and the people who might be vulnerable in the future knew who he was and they could make their own decisions to ensure that they did not fall prey to this man. She was not able to out that person to make sure that others knew who he was and that remains a concern for that woman and, indeed, for the other parents involved in that case.

Concerns have been raised that publicly releasing the name of an offender might impinge on the privacy rights of victims, and we have covered that a fair bit. As I mentioned earlier, it is sometimes hard to know the relationship between a victim and offender and it is not always obvious to an external party, certainly not to a journalist but sometimes not even to investigators, as to whether a victim might be identified by the public identification of an offender. That is something that is ameliorated somewhat by the delay in this change to the point of a first court hearing but, I think, is still a live issue that will have to be considered as matters proceed through the court.

It is also worth considering the effect of publication on a victim. Sometimes media attention has different effects on different people, and sometimes a person can go into a situation not realising that they could come under scrutiny and what the publication of an offender's details and the circumstances of a crime will actually mean for them in terms of possible revictimisation, having to relive the trauma of a crime, having to explain it to others in the community and having to deal with all that while a court case is proceeding, as well as the intense mental impact that sexual offences have on a victim. It is worth keeping those considerations in mind, and I am sure those who work in the victim units of both the police and the DPP, as well as organisations such as the Victim Support Service and the Commissioner for Victims' Rights, are well attuned to those issues.

In light of these matters I raise, the Labor opposition is therefore considering introducing amendments to the bill in the other place to require that the victim or their representative be consulted and that their views are taken into account regarding the release of an offender's name prior to the offender's first court appearance. The advice that we have received is that while the DPP has ongoing contact with victims throughout the course of a prosecution, and particularly once the accused either pleads guilty or is committed for trial, there do not appear to be established processes or requirements that a victim must be told if the identity of an accused is to be released.

We think that a victim should be told so that they can consider whether they need to make an application to the court. Maybe they need to raise some detail with the prosecutor that the prosecution may not be aware of so that the name of the offender is not released, or so that they can take some other form of action so that they and their loved ones are prepared for the release of an offender's name and the public scrutiny that bears down when that happens.

That approach is consistent with Labor's reforms in the area of improving victims' rights in the justice system. It feels like a little while ago now, but the former attorney-general Michael Atkinson should be commended for the quite thorough work he did in terms of setting up processes that enable victims' voices to be heard through our justice system and that have given victims greater rights, largely through the Commissioner for Victims' Rights, to be heard in court and outside court as matters proceed. The amendment we are looking at in the upper house and the broader bill itself are consistent with those Labor reforms which sought to provide a greater voice for victims and a greater role for victims in a justice process that, unfortunately, sometimes alienates and retraumatises the people to whom it is meant to deliver justice.

I would like to commend my colleagues in the media. Having been part of the fourth estate for almost two decades, I know that it is an incredibly valuable job. It is incredibly valuable in holding those in power to account, and it is something that is, unfortunately, under threat in our current climate. We should be fighting as much as possible for journalists to be able to report on public affairs wherever we possibly can, and to that extent I am pleased that this bill is before the house.

For many years as chief court reporter at three different media outlets, I was part of that push to make sure that journalists can get the information they need. There is a lot more work still to be done. The public would be surprised at how much information courts hold that is not available to journalists, that journalists are not able to get hold of, but is in no way problematic for the justice system. Many decisions are made by individual judges or even court registrars about what journalists can have access to and what they can report, and what they even know exists on a court file, and that is not a good thing.

I personally think that we should be making sure that the integrity of our justice process is rock solid. The amount of information that is concealed from the public at the moment is far greater than many people would understand, and this tackles just one quite high-profile element of the controls that are on reporters, particularly when it comes to our justice system. There is a huge amount of work to be done.

I commend my colleagues in the media who have fought long and hard to raise these issues, these impediments to their fair and accurate and balanced reporting, and to ensure that this house is now looking at this issue—this particular facet—of the problem of court reporters in particular being restricted from fully and frankly describing what happens in our justice system and the crimes that are perpetrated in our state.

I hope they continue their fight and make sure that in this current climate, where we are seeing the under-resourcing of media and greater and greater pressure bearing down on individual journalists and newsrooms, they continue their fight, despite that, to ensure that all of us are richer for having fair and accurate information presented to us as citizens and that those in power are scrutinised in the way that they should be by journalists. I commend those who get up every day and argue against suppression orders and put their case forward in our courts, just as much as those who argue through their reporting and the commentary in the media, and I hope they continue to do that.

In closing, I mention that, unfortunately, there has been a circumstance where I as lead speaker on this bill in this house was not able to obtain a briefing on this matter prior to it coming on today. That is regrettable, and I have raised it with the Attorney's office, so I hope that has been passed on to her. I understood that there was to be a briefing yesterday, and an email was sent out about that, but when I turned up it was not on. There has obviously been some confusion about that, but I hope that circumstance does not happen again because those of us on this side of the house need to be informed and to have the avenue to ask the questions that we want to ensure the swift passage of legislation through this house.

I will take advantage of the opportunity in committee to ask some questions and indeed some further questions as this matter proceeds between the houses. I thank staff for their work on this bill and I look forward to communicating with them through the Attorney to make sure that this is as robust as possible and that our amendments that are put forward in the other place are achieving their aim. In closing, I once again indicate Labor's support of the bill and I look forward to it swiftly passing this house.

Ms LUETHEN (King) (12:05): I rise to support this evidence amendment bill, which makes changes to the reporting on sexual offences. This bill has been introduced by the Attorney-General, and I commend her for this bill.

Our government believes that in the vast majority of cases the public has the right to know the identity of someone who has been charged with an offence of a sexual nature. No other offence allows for an automatic suppression order, and our reforms seek to address this imbalance. Where the court deems it necessary, a suppression order can still be imposed, but this will be a consistent process for all offences, recognising there may be valid reasons for a suppression order, such as if there is an active investigation or if evidence is still being gathered.

The Attorney-General has said that the proposed reforms would bring South Australia in line with other states and territories. Currently, only South Australia, Queensland and the Northern Territory prohibit identifying an accused charged with serious sexual offences until they are committed for trial to a superior court. The former government declined to implement this recommendation, and I am pleased to hear today there are indications that the opposition is indicating support.

These reforms are in line with the recommendations made by retired Supreme Court judge the Hon. Brian Martin AO, QC in his 2011 review of the subject. Shortly after the 2018 state election, The Advertiser, in conjunction with victims' advocacy groups, commenced the 'Your right to know' campaign, arguing for lifting of these reporting restrictions.

There is a very serious question here: do paedophiles and people who commit sexual offences against others deserve privacy just because of the nature of their crime? I say not, and I believe that my constituents in King agree with me, which is why I am taking the time to speak on this today. As many of you know, I have spoken in this place previously about the unforgivable and atrocious nature of child sexual assault. Time does not erode the gravity of these offences, and I believe that adequate safeguards and penalties must be applied in all circumstances.

One might argue that the naming of an alleged sex offender who is found not guilty may result in their life being destroyed. However, that argument could be made for people facing other serious charges like murder, drug trafficking, fraud, stealing, etc. It is very important in this debate to make clear that, in terms of these restrictions in South Australia of reporting the sex offender's name, these limitations do not apply to other types of offences.

The bill supports a progression of key initiatives from the Marshall Liberal government's Attorney-General to support victims through empowering them to report claims of sexual abuse to authorities and providing an open and transparent system for our community—two tenets of our government's justice agenda.

The former government declined to accept the recommendations by the reviewer in full, instead leaving open the option for the community to be left in the dark about serious sexual offences. It is not surprising that the former Labor government ignored this recommendation as they consistently are in opposition to transparency. Thankfully, we now see a government whose amendments before the house achieve the recommendations of the review and provide comfort to the community in allowing publication of identification of 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 twofold. First, it prohibits reports regarding such proceedings—for example, the publishing of details of evidence given in the proceedings or any statement that might reveal the identity of a person who has been or is about to be charged for a sexual offence. It is this aspect of the prohibition that is significantly changed under the bill.

Secondly, 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. In the case of a person who is yet to be charged, the Evidence Act preserves the integrity of an ongoing police investigation and 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 complainant's credibility.

The bill has been designed to make sure 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, a number of high-profile prosecutions have demonstrated the inherent difficulties with restrictions of this type if they persist for the duration of committal proceedings.

For some time, victim advocate groups and survivors of sexual abuse have been championing for victims' rights to be heard at any stage of the proceedings should they wish to speak publicly about what they allege the defendant did. It is the choice of an individual adult victim 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 procedures by ensuring that they can be scrutinised and analysed. However, these principles must be balanced 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 ongoing investigations. That is why clause 4(2) of the bill amends the prohibition rather than remove it outright.

By prohibiting the 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 in relation to 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 be reasonably inferred, in breach of section 71A(4) of the act.

Once publication of that sort occurs, the information is in the public domain. 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 applications to be made for a suppression order under section 69A of the act. This will ensure that parties can be heard about whether identifying the defendant may, for example, cause prejudice to the proper administration of justice by impeding an ongoing investigation into similar complaints against the defendant. The court can then exercise proper oversight in relation to the proceedings before it.

The government has carefully considered the implications for both victims and accused throughout this process. There have been several court cases over recent years that expose 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 AO, QC states 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.

Victim advocate groups and survivors of sexual abuse have been advocating for some time for the right of victims—whom we must protect at all costs—to be heard at any stage of proceedings, which is undoubtedly aided by this bill. Further, this bill enables the flow of information to them, particularly around child sexual offences, with that early publication of identity promoting the possibility of more witnesses coming forward. This point, I feel, is very important. Too often we hear of sex offenders never being charged or being charged for isolated offences with many of their previous victims never coming forward or having the opportunity to say, 'Me too.'

Whether it be a sex offender in a school or family sporting club, what we do know is that it is highly likely that there were other victims. There are many reasons these victims may never come forward. They may be children who do not understand what has happened to them. They may have blocked it out. They may not have the knowledge and ability to speak up. They may have been threatened or they may be carrying the shame around with them for the rest of their lives.

In workplaces, in families, in government, sex offenders may get away with their crimes because people are too afraid to speak up, too afraid they will not be believed, too afraid they will be further victimised by the processes of reporting misconduct in workplaces, in government, in families today. These processes must be addressed to make it easier for people to speak up. Some victims may simply not want to risk their careers. They need the opportunity to see offenders when they are named and the opportunity to speak up and say, 'Me too.'

Put simply, openness and transparency should be the default position of our justice system in South Australia. I am pleased to support this bill, which advances the recommendations of the report, which were left incomplete by the former government. I commend the bill to members and I thank the Attorney-General (member for Bragg), the member for Heysen and the member for Badcoe who have indicated their support today.

Mr BELL (Mount Gambier) (12:18): I rise to make a brief contribution to the Evidence (Reporting on Sexual Offences) Amendment Bill 2019 and indicate to the house that I will be opposing this bill. Right from the start, I want to make sure that it is very clear on the record that I have no interest whatsoever in protecting the identity of anybody found guilty of a sexual offence. In fact, I will go further and say that I think the penalties should be strengthened for anybody found guilty of a sexual offence against children or minors. However, that is a distinction that needs to be made that, once you are found guilty, there is a lifting of the current suppression orders and your name will be disclosed in the public realm.

There is a feeling that pervades this argument that without these amendments justice will not be done. The member for Badcoe gave the example of a small town not being able to know the identity of somebody who has been convicted of an offence and incarcerated for a period of time, and that certainly needs to be looked at; in fact, I would support any amendments in that space. Once somebody has been convicted, we should be looking at the reporting of those offences so that people are aware of what has occurred.

Comments were made—and I do not think they were made flippantly—that we do not want to see anybody falsely accused but that there is a price we agree to pay. I am here to say that I do not agree to pay that price because under the current system your right to know is there: it is once somebody has been found guilty of an offence. My concern with this bill is for anybody who is innocently charged with one of these crimes.

In my time as an MP I have seen four cases where people charged with a sexual offence have come to me, and in each of those four cases it did not proceed to trial or the person was found not guilty at trial. Let me tell you that in a small community like Mount Gambier, where there is a loathing—a feeling of complete disgust—of anybody who is charged with a sexual offence, all four of those people would have had their name and faces plastered all across not only local but national newspapers, later to be found not guilty or the charges were withdrawn. Not only would their lives be destroyed, and they are already significantly impacted at the moment, but my greatest fear is that on at least two occasions they would have taken their own life before it even went to trial or the charges were dismissed.

What I fear with this bill is that we are going to have trial by media. Already, we have heard lots about the media's right to report. The member for Badcoe commented that if a charge is dismissed or withdrawn then the media has an obligation to report, with the same prominence, the original accusation. Well, let me tell you, I have seen these cases before the newspapers and if you got a by-line on page 18 you would be lucky, yet you go back to the original accusation and the original story and not only is it plastered over the front page but it is page 3 and then page 5 for a period of weeks at the start.

I take the point that they should be exonerated and be on the front page and page 3 for the proceeding three weeks once they are found not guilty, but the reality is that that does not occur. The damage is already done and these people who are found innocent or the charges are withdrawn not only have their lives destroyed, and their families' lives destroyed, but they face serious obstacles going forward. They are the ones I am talking about. I think we should throw the book at anybody who is found guilty of an offence, and the media have every avenue at the moment to be able to do this. In this debate, people are very careful in identifying alleged offenders.

The problem that we have in this very difficult space of sexual offences is that it is not like murder or trafficking drugs. That accusation has been made here today—that we can present people's names and report on murder or on trafficking drugs. The big distinction I want to talk about to this house is that in cases of murder and trafficking drugs it is somewhat easier—I will not say 'easier' but 'somewhat easier'—to identify that a crime did actually occur.

In most cases of murder, not all but most, there is a body, so you can establish very quickly that a crime has occurred. It is the same with trafficking drugs: you capture somebody either in possession of drugs or in connection with the trafficking of drugs, which are seized, tested and determined to be a narcotic of a class, and you can then establish that, yes, a crime has occurred. I do not want to trivialise this because, as I have said, I have no interest in protecting anybody associated with sexual offences once they are found guilty.

However, if somebody is trafficking in white paper bags containing talcum powder, whilst these may appear to be drugs, once that substance is tested and it is found that it is not a commercial drug, a crime has not occurred. That is a very important distinction. Two of the cases people have come to see me about were historical sexual charges: in one case the alleged offending was 35 years ago and in the other case it was 20 years ago. One person was found not guilty and the other person's charge was withdrawn.

In this, there is a difficulty in establishing that the crime actually did occur. I am not here saying that it did or it did not—I have absolutely no idea. What I am saying is that on four occasions people have been charged with a sex-related offence and that charge has been dismissed or they have been found not guilty. Thank God that there was a level of protection in a smaller community because their names did not appear in court transcripts or in the paper or on the front page.

That is really important and why I am opposing this—because I just cannot get my head around 'your right to know'. I totally agree that you have a right to know: once somebody is charged and found guilty, you have every right to know. I support that 100 per cent. If legislation ever comes before this parliament to strengthen penalties for those who commit offences against children, trust me, I will be the first one standing up and saying, 'This is what we need to do.' That type of offence is disgusting and abhorrent to me.

My concern, of course, is for those who are charged but who are later deemed to be innocent. I will not pass or be part of any legislation that I believe will lead to the death of an innocent person. That is how seriously I take this. That is the consequence that I see of this legislation. It is not just me indicating this type of thought process. The Law Society of South Australia has provided a response to the Attorney-General. I read the response, and I really could not have written it any better myself—and I would be plagiarising if I tried—so I thought the most prudent thing to do was read out the response from the South Australian Law Society:

11. The Society does not support the Bill and outlines its key concerns with the proposed amendment of section 71A below…

12. The Bill will effectively remove all protections with respect to publication that apply for an accused before guilt is actually determined. A defendant's name could be published and offences reported on at any time (including before charge determination), as such, reports will be permitted before any adjudication takes place.

13. Furthermore, as a result of the Major Indictable Reform, there are lengthy adjournments for police to gather evidence and plenty of cases fall over after arrest but before committal. Police are essentially charging first and compiling evidence later, given that such lengthy adjournments are being provided to compile the preliminary brief. In the meantime, a person's life and reputation can be totally destroyed by the publication of the allegations.

14. Even where an accused is ultimately found not-guilty, there remains a serious risk that while that person may be innocent in the eyes of the law, they will forever be considered guilty (or there will be doubt as to their innocence) by the community. The proposed amendment will allow a person to be publicly named as a sex offender, before there is sufficient evidence to justify the charge.

That is certainly one of the cases that I know of as a local MP. The response continues:

15. The Society takes the view that the ability to publish such information before a case to answer is established by the Director of Public Prosecutions (DPP) places a defendant (and his/her family) at risk in the community. Suppression in this context does not just protect the accused, but their families as well, who may be the target of vigilantism and discrimination.

16. As such, the courts may continue to make orders for suppression in these circumstances and the Bill may not achieve its desired effect in practice, due to its detriment to an accused. Matters are rarely resolved in a swift or expeditious manner. It could potentially take years for guilt to be determined. There is serious likelihood, as noted above, that a person's life and reputation will be completely destroyed in this time. Hence, justifying the need for suppression.

17. The Society questions the justification for the Bill, noting that under section 71A(3) the court may, on application make a publication order that restriction on publication be varied or removed if it may assist in the investigation of an offence; or is otherwise in the public interest. Therefore, there is already sufficient public interest exemption built into the current legislation.

18. The Society further notes under the Bill, all alleged sex offenders will not be treated equally. For example, defendants who are related to the victims will still have anonymity, to protect the victims. As proposed, only the names of those who have been alleged to have committed sexual offences will be published where the victim can't be identified, or the victim's identity inferred.

The right to know

19. The principle of open justice is an important feature of the common law. However, the principle of open justice is not absolute, and limits have long been recognised by the common law, particularly where it is 'necessary to secure the proper administration of justice' or where otherwise it is in the public interest.

20. Such limits are also acknowledged in international law. The International Covenant on Civil and Political Rights provides in Article 14 (1)…

21. The default position is always that of an open justice system, but it is recognised in both Australia and in international law, that there are circumstances where suppression is necessary and appropriate. The 'right to know' is one of many rites that need to be considered to ensure the proper administration of justice.

This is what I think is the most important point:

22. The presumption of innocence underpins the criminal justice system in Australia. It applies to suspects, persons arrested and charged with criminal offences, as well as those who stand trial. However, in the court of public opinion, the presumption is becoming increasingly fragile, as many people assume that being charged or prosecuted indicates guilt.

23. The Society considers, that while any limitations on open justice should not be administered lightly, there are circumstances where the public's right to know must be balanced against the serious prejudice and detriment to an individual. As noted above, due to the nature of sexual offences there is an overwhelming negative stigma that attaches to sex offenders, particularly child sex offenders. This stigma remains even when someone is incorrectly suspected of having committed a sexual offence. Furthermore, reports in relation to a suspected offender (even when found not-guilty) are likely to be permanently available on the public record/media.

24. One must be very careful in placing too much weight behind contemporary community attitudes, to the extent that they support the 'right to know' view. Often, it is not until someone has been in the position of an innocent sex accused, or close to him/her, that they are aware of the devastating effects publication can have.

25. While the public may be interested in a matter, this is quite distinct from the matter being in the public interest.

26. The Bill presents the very real possibility of permanently destroying the person's life with the stigma of allegations, only to see charges withdrawn or them to be found not guilty. The Society considers such consequences are not in the public interest.

Lastly:

27. The reasons that moved Parliament to pass such laws in the past have not changed. The stigma and serious potential for detriment for a wrongly accused and his/her family still exists. The Society submits that the restrictions on reporting on sexual offences under section 71A of the Act should remain.

That is my position. We have to draw a distinction here. Once somebody is found guilty, then the right to publish in the media is there already. Justice is not denied by simply protecting the innocent and the presumption of innocence until a guilty verdict is determined or the person pleads guilty.

In terms of the length of time that somebody's identity is suppressed, to me that reflects more on the court process and the time to get an outcome than on the suppression order itself. If we could do anything in this place it would be to assist the courts to speed up the determinance, I suppose, from accused through to innocent or guilty.

It is with those words that I will be opposing this amendment. I think it is dangerous. I think it will lead to innocent people taking their own lives, and I will not be part of any bill that passes this house that has such a serious outcome for innocent people in my community.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (12:38): I will start by addressing matters that have been raised by the member for Mount Gambier, who has indicated that he will not be supporting the bill. I fully respect the matters that have been outlined by him and the decision that he has come to in relation to his proposed opposition to the bill. He has outlined a number of aspects of the Law Society submission—received in July this year, predating of course the major indictable reform report that was been prepared but, nevertheless, taking into account a submission that was made back in 2011 when the Brian Martin review was published—and the view then of the Law Society president Ralph Bonig.

What is omitted, and I ask that the member at least to reflect on this to some degree, is the whole legal process after a person has been charged. I leave aside the investigation stage by police or other integrity bodies in relation to the development of a case to identify if there is a prima facie case for someone to be charged, because that is a whole other area.

In relation to that assessment, a person has been charged with an offence, any offence, and it then becomes a matter for consideration by the court process, the courts of course being independent of the executive of government, independent of the parliament, and their role kicks in, so to speak. What is important, and underpins the transparency of the court process, is that it also needs to have the sun shine on it to ensure and reassure, from the public's perspective, that there is a system that operates to interrogate that independent process.

There are some exceptions to that, where the court wraps around itself some secrecy—for example, when a child is going to be giving evidence. I should indicate that the Family Court makes the decision under its law that its cases are kept private and secret, they are not available for anyone in the public to just turn up, and there are reasons for that. But, as a general rule, the whole court process is on show and accessible to the public, just like we are here in the parliament: we are on show and we are available for scrutiny by the public, who can then examine what we say and what we do (or fail to do) and consider their own verdict. That is an important piece of the jigsaw in making sure that we have a transparent system.

The question of the damage to someone who is falsely accused of a child sexual offence (and I think this is where the key element is here—not any sexual offence, but a key sexual offence against children) is one that has obviously been in focus in the last 15 years or so. In fact, in the time I have been here in the parliament there have been two royal commissions and multiple inquiries in relation to various aspects of this behaviour. It is a compelling argument for consideration.

There was a time when a sexual offence against a young woman, in which she would be defiled by virtue of any allegation of sexual impropriety for the purposes of affecting her prospects for marriage, for example, was an era in which, if someone had had intercourse before marriage, that might not be a useful entry into opportunities for marriage. Generations ago that was a stamp against them, which would mean that it was important that we reflected that in the laws that prevailed at the time. We had breach of promise laws, we had circumstances that surrounded that relationship and the potential that it would damage someone's reputation so badly that it could not be made public.

Today, I think it is fair to say that young women (I generalise here) are not offended by the prospect that their virginity, or the lack thereof, might be in some way exposed publicly, and their prospects of marriage would not be a major factor. I suspect they would be hot to tell if there had been a circumstance, and the 'Me Too' campaign around the world is probably indicative of that. Women of today, especially when someone else has come forward, are much more likely to come forward, as are young men who might have in some way had sexual advances made to them or, worse still, other acts of indecency against them, so it is important that we recognise someone who might be falsely accused.

I also ask that the member appreciate two things. Firstly, people can be very badly affected by a false allegation, no matter what it is. If you are an accountant, for example, and you are falsely accused of having stolen money from your boss, you can imagine how that would impact on you and the fragility of the circumstances that that would impose on your mental wellbeing and how the option for suicide may be insurmountable. Whilst I appreciate that child sexual abuse is a heinous crime, we have many other heinous crimes. Whilst I appreciate that to be falsely accused of a crime that is heinous may cause irreparable damage to the mental wellbeing of the accused, we also have to remember that others may be in that category.

Secondly, I ask members to remember that just a few weeks ago we were debating an amendment to a bill that related to the disclosure of information under a working with children check. This is a process that we have in our law nowadays that enables certain persons at certain times to have access to the entire record of somebody rather than just their convictions. It is very selectively available for very discrete purposes. In this case, if you want to take up employment or voluntary work in a circumstance where you are going to be working with children, then a very high bar is set for the threshold of matters to be taken into account before employment or voluntary work is allowed. It is a very good reason.

Those allegations, which do become available in those discrete circumstances and deprive somebody of an opportunity of employment, have very big consequences. People lose their jobs, they lose their livelihood, they lose their capacity to be able to provide for their family or even themselves. It can have a devastating effect on them. Just to be in a circumstance where you are excluded from a workplace and you are not able to be part of the community in your workplace world can have horrific consequences, so we need to be mindful of that as legislators at any time.

In relation to these matters, the Law Society's view on this does not surprise me. Last year, the previous president had been asked to comment about the proposed law that was considered at that stage. He made the point, 'Look, we would like to keep it to avoid the reputational damage of people in these circumstances in these particular offences, but we accept that we are out of sync with the rest of Australia.' So there is, I suggest, a qualification with that, but for the moment that is their position. We have certainly taken it into account and appreciate it.

The members for Badcoe, Heysen and King have also made a contribution. I thank them all for that. The member for Badcoe raised a few things, and I would like to report on them. Firstly, in relation to her not having had a briefing, I have been advised that that is the case. I would like to place on the record that, whilst I see that as regrettable and note that she might wish to ask further questions during the period the legislation is between the houses, and we will endeavour to make answers available to her, the shadow attorney-general had been provided with a briefing. The shadow attorney-general had issued a notice of that to all members of the opposition. At the briefing the shadow attorney attended, a number of other members of the opposition in this house also attended.

Whilst I appreciate that the member for Badcoe has been identified by the opposition as the lead speaker on this matter, I am advised that there had been a briefing proposed. There was no indication back of whether or not that time was convenient. There was obviously some misunderstanding, from the opposition's point of view, as to whether or not that was the case, but on this side of the house we have tried, in government, to do much more than the previous government did.

In these cases, with the previous government I would get a notice of when the Attorney-General's people were available to meet and I would let my own people know, those I thought would have some interest in the matter. We have a practice of advising all members of when the briefing is, and if they are available or have an interest in a matter they are welcome to attend. We could go to the narrow version of the previous government but I do not want to do that because I think it is important for members to get information about a matter, particularly members who are Independents or in a minority party who may not have the benefit of a representative from their team being able to get that information. We are happy to try to answer any questions.

On the matter specifically raised by the member flagging that there would be consideration of an amendment requiring them, as an obligation on the investigating party—which, of course, would usually be the police—to consult with the victim, the new law would mean this would have had to occur before the first hearing date. Under that proposal, there would have been an obligation to undertake that consultation. We have spoken to the police about this matter and they are not supportive of that approach as a mandatory obligation. They raise a number of issues, but I think it is important that I flag this so that the member for Badcoe can make the inquiry herself regarding whether she thinks this is a practical proposal.

As to who has been doing the investigation, the availability or details of all the victims, the notification of them, I am advised that the current process—certainly from the DPP's point of view—is that where a victim is identified obviously they are part of the process for the case. If they are a child, their parents are consulted in relation to medical assessments and so on and all statements being taken, and if they are an adult they are also part of that process for the gathering of evidence, witness statements and the like.

In fact, we are so keen on this in our DPP that we have employed a new and most valued employee, and that is Zero, our witness assistance dog, who comes to work every day—and who, I hope, will be featured in my Christmas card. In any event, he does much more important work every day in providing an environment, in his presence, to ensure that witnesses, particularly children, are able to be in a calm state for the purpose of giving evidence and/or their statement for committals and the like.

In our department, we are very keen to make sure we do everything we can to support witnesses, and I am advised that obviously they are a key part of that, in particular in circumstances where there is intrafamilial abuse. This is probably the most destructive area from the point of view of a victim, where the offender against them is not someone who is their institutional provider—that is, a teacher or a church representative, which we know a lot about from royal commissions—but is, in fact, a member of their own family.

This can sometimes be the most distressing thing for the victim. I think that that is something we have to consider for the purposes of the release of information and in cases where there has been abuse such as this. This is a very key part of the basis upon which an ongoing suppression order is made. It does lead to the question, for example, of the local community matter that has been raised, where people have even been convicted and still the local community are not made aware of that information because the community is so narrow in number.

This happens perhaps more than people appreciate in the interests of protecting the victims, who may be, say, children of the offender or in a very small country community. This is a really difficult situation. To reassure the house, I say that we and the DPP's office take very carefully our responsibility to ensure that victims are supported during this process and consulted in relation to that. I urge the member to look at that matter more carefully and to certainly consult with the police because we are moving the threshold gate to the first hearing date.

In the last few days, I was also minded to think of the disturbing situation where the child of mass murderer Ivan Milat has come out publicly to tell of her grief and her circumstances. I reflect on it because she is now a woman, apparently in her mid-50s, who has had to live with the odour of her father being a convicted multiple murderer. As we know, he recently died. I think there are probably very few people who would be unhappy about that, but the reality is that the children of offenders, even if they are not a brother or sister of a sexual offender, are indeed also victims in these processes. I think that should not be ignored because they have to live with the circumstances also.

One of the arguments that is frequently raised by counsel representing the accused is that the innocent children of the family, or a spouse, might be unfairly dragged through the media coverage as a result of their father or mother being exposed in a publication as a result of a matter being in court. But these are all things that have to be balanced in a transparent environment in a court, which is what the bill will retain: the special arrangements to be continued on that. I seek leave to make further remarks.

Leave granted; debate adjourned.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT