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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-13 Daily Xml
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EVIDENCE (REPORTING ON SEXUAL OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2012.)

The Hon. J.A. DARLEY (17:28): I rise very briefly to speak on the Evidence (Reporting on Sexual Offences) Amendment Bill. The arguments for and against the need for this bill have already been canvassed by my colleagues the Hons Ann Bressington and Stephen Wade. The Law Society of South Australia in its submission has made some valid points regarding the devastating impact that the disclosure of an accused's identity can have on that individual in sexual offence cases.

At the risk of repeating what has already been placed on the record by other members, I am sympathetic to the Law Society's view that an accused person who is innocent in the eyes of the law will forever be considered guilty by the community of what is arguably one of the most heinous of all crimes. As a general observation, the Law Society has adopted the view that sexual offences are a special class of offences in that they tend to attract a stigma for both the assailant and the victim and are more liable to false reporting than any other type of offence. Their position is that the combination of these two factors distinguish sexual offences from other offences and as such there should be no publication of an accused's identity unless guilt has been determined by a court.

Under normal circumstances, I do not think many of us would question courts exercising their discretion in lifting a suppression order, particularly where it is considered reasonable in the investigation of an offence or where it is otherwise in the public interest to do so. This bill comes down to the question of whether we are dealing with circumstances that are so out of the ordinary that this discretion should not exist.

The Law Society canvasses many issues which have not been addressed in this bill, but on the question of the discretion of the court they state that courts should be given the discretion to order publication of any information of whatsoever nature in any case in appropriate circumstances. This includes information identifying the accused or complainant in a sex case. My office has spoken with a representative from the Law Society about this matter in terms of whether this position still stands, even without other changes that they have recommended. My advice is that it does.

My office has also spoken to Mr Tony Kerin, President of the Australian Lawyers Alliance, and I am advised that ALA supports the legislation as it stands on the basis that it appears to be working well but are not in principle opposed to a judicial discretion. I am concerned about the ramifications that the disclosure of an accused identity can have on their lives where they are ultimately found not guilty by the courts. I am equally concerned about inflexible rules potentially leading to unjust results, and I can see the merit in giving the courts more flexibility in dealing with these cases.

Having said that, I would question whether these measures are actually necessary or indeed whether they will result in a different outcome. One would expect that any decision to disclose an accused's identity would not be made lightly and that the courts would exercise extreme caution in coming to such a determination. That said, I will not oppose the bill on the basis that in practical terms I do not think it will make a difference. Finally, with respect to the Hon. Stephen Wade's amendments, whilst I fully acknowledge the arguments raised in relation to an open system of justice, I indicate that I will not be supporting those amendments. With that, I support the second reading of the bill.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:32): I understand there are no further second reading contributions indicated on this bill. I thank honourable members for their second reading contributions and their support for this important piece of legislation and I look forward to its being dealt with expeditiously through committee.

Bill read a second time.

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