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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-30 Daily Xml
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EVIDENCE ACT REVIEW

The Hon. S.G. WADE (15:25): On 3 May 2011, in response to the controversy about the charging of a state Labor parliamentarian with child pornography charges, the then premier Mike Rann announced an independent review of section 71A of the Evidence Act 1929. Sections 71A(1) and (2) of the Evidence Act prohibit the publication of evidence given in proceedings against a person charged with a sexual offence and the identity of a person who is charged or is about to be charged with a sexual offence until the accused has been committed for trial or sentence or, in matters determined summarily, until a plea of guilty is entered or a finding of guilt is made following a trial.

In July 2011, Justice Brian Martin, former chief justice of the Northern Territory, was appointed to undertake the review. The Attorney-General released the report last week. Justice Martin's report is a strong statement about the need for open justice and the interrelationship between the independence of the judiciary and the freedom of the press. The key sections of the report are:

Ultimately the primary consideration is the proper administration of justice, which includes ensuring that a person accused of a crime receives a fair trial according to law. As I have already explained, other than in exceptional circumstances, in my view publication of the identity of a person charged with a sexual offence prior to committal for trial or conviction does not undermine either the presumption of innocence or the right to a fair trial. To the contrary; the current prohibition has the tendency to promote rumour and innuendo which in turn can create an atmosphere prejudicial to the accused person whose identity is suppressed...

Later in the report, Justice Martin wrote:

To the extent that a few are adversely affected by the publication of identity, their personal interests are outweighed by the 'greater public interest in adhering to an open system of justice'. Publication of identity might also promote the possibility of witnesses coming forward.

The Liberal Party is a party which respects rights and freedoms. We specifically respect the rights of the individual. We are persuaded by Justice Martin's logic that the current law works against the individual as much as against the community. We have decided to work towards the repeal of section 71A(1) and (2) as recommended by Justice Martin.

No doubt, the government will selectively quote Justice Martin where he says 'there is no right answer' but no person can read the Martin report without seeing clearly where he thinks the balance lies, and he specifically recommends repeal of section 71A(1) and (2). Significantly, only Queensland and the Northern Territory have similar provisions to section 71A. In 1988, the United Kingdom repealed a statutory provision protecting the identity of the accused, following a law reform review.

I stress that the opposition does not support junking suppression orders. We believe that suppression orders are an important tool for the proper administration of justice, but they must be used sparingly and there is no reason why sexual offences should be treated differently to other offences. We think courts and their processes should be open and transparent unless a significant reason exists for their closure. The government, on the other hand, thinks courts should be closed by default.

In 1976, the Criminal Law and Penal Methods Reform Committee, chaired by Roma Mitchell, issued a special report to say that sexual offences should not be treated differently. I quote from the Martin report on this matter:

Significantly, in March 1976 the Committee delivered a Special Report concerning the law relating to rape and other sexual offences in which the Committee expressed the view that 'a charge of rape should carry with it no greater and no less immunity from publicity than any other prosecution for a serious offence'.

The opposition welcomes the Martin review and is disappointed the Labor Party has rejected the recommendation of the independent umpire. We know that these are raw issues for the government. The identity of a Labor MP is currently suppressed under section 71A. The father of a Labor MP was subject to a suppression order. Our position is not in response to those cases. Even if the Labor MP's identity is suppressed when legislation is considered by this parliament, we would not support retrospectivity. Having responded to public disquiet over the suppression of the identity of the Labor MP by commissioning an independent review, we urge the government to put the public interest first and change this law.

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