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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-18 Daily Xml
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EVIDENCE (REPORTING ON SEXUAL OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 September 2012.)

The Hon. A. BRESSINGTON (16:16): I rise to indicate my opposition to the bill. It may also come as a surprise to members that I will also be opposing the Liberal amendments to the bill, for I support the current suppression regime. Mr Acting President, you and other members in this place should have no doubt about my abhorrence of child sex offenders, and my opinion of sex offenders more generally is no different.

As you would be aware, I have introduced in this place a bill that would see child sex offenders receive minimum gaol sentences many years in excess of the penalties currently imposed. I also spoke at the 'Keep Mark Trevor Marshall in Jail' rally last year, which I hope is partly attributable to Mark Marshall, whose heinous crimes I have detailed before in this place, still being behind bars. However, my disgust is rightly directed at those who are convicted—

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): The Hon. Mr Brokenshire might like to respect the member on her feet.

The Hon. A. BRESSINGTON: In a just society, this is how it should be. You would be aware that I have also demonstrated my concern for those wrongly accused and, worse, wrongly convicted. I was the first in this parliament, and indeed the country, to introduce a bill to establish a criminal cases review commission for their benefit. Just as an aside, I note on the record the Attorney-General's commitment to giving effect to the Legislative Review Committee's recommendations for an alternative appeal right for those alleging they have been wrongly convicted.

The Hon. S.G. Wade: I hope you're patient.

The Hon. A. BRESSINGTON: We have had a meeting. However, unlike being accused of other offences, being falsely accused of being a paedophile is potentially life-destroying. As the Law Society states in their submission to the government's review of section 71A, dated 19 August 2011, 'to be branded a paedophile is arguably the most insulting label one can place on a person'. Some even have credited—one hopes wrongly—the fear of being falsely accused with the decline in male primary school teachers.

Whilst the existing suppression regime of course means that there will be some paedophiles who escape the public's anger and angst by either not being charged, having their charges withdrawn, or by having the case dismissed in the summary jurisdiction, it also means that those who have been falsely accused are not burdened by the inescapable societal condemnation. The Law Society, having discussed the child sex offenders register, makes this point in their submission, stating:

Publication of the identify of a child sex accused who ultimately is not found guilty is tantamount to entry on such a register for life. An innocent child sex accused will forever be marked and carry the overwhelming stigma to his/her substantial prejudice.

They added:

An illustration of how the community views child sex offenders is the way they are treated by the prison community. The prison community is, in one sense, the most dishonourable and undesirable of any community in the land. Notwithstanding this, the prison community does not tolerate child sex offenders and targets them for violent retribution.

It is our firm submission that no child sex accused should ever be identified, unless they have been found guilty and convicted.

This point actually argues for suppression until the defendant either pleads or is found guilty, something we are not being asked to consider, but we clearly have support amongst the legal fraternity.

Whilst recent cases have demonstrated the futility of suppression orders in high profile cases, with interstate media reporting suppressed details and this subsequently being readily accessible to South Australia via the internet, I see absolutely no justification to remove the suppression. Nor do I believe the benefits that may be derived by releasing details of an accused outweigh the harm it will cause to those who are wrongly accused and who are ultimately found not guilty. It is for these reasons that I do not support this bill.

The Hon. S.G. WADE (16:21): I rise on behalf of the Liberal opposition to indicate that we do not support the Evidence (Reporting on Sexual Offences) Amendment Bill as it stands and that I will be moving an amendment to the bill. South Australia has a reputation for being suppression city—the suppression city and the suppression state. The Labor Party's fondness for secrecy and disregard for transparency is reflected in our laws. One such law is the Evidence Act 1929.

Section 71A(1) and (2) of the Evidence Act 1929 prohibits 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. These provisions put a presumption on secrecy rather than transparency and treat offences of a sexual nature in a manner different from other offences.

In April 2011 the Hon. Bernard Finnigan was arrested and charged in relation to sexual offences. He resigned from cabinet and is no longer a member of the Labor Party. However, it was a further 17 months before he was publicly identified. The then premier made a ministerial statement in which he committed to a review of suppression orders.

In July 2011 the Hon. Brian Martin AO QC, former chief justice of the Northern Territory, was appointed to undertake an independent review of these provisions. His report was completed on 30 September 2011. The primary recommendation of the Martin report was that section 71A(1) and (2) be repealed. To summarise Justice Martin I will quote from a few passages of his report, as follows:

In my opinion the interests of the few who would be adversely affected by removing the automatic prohibition currently mandated by section 71A do not justify the constraint on the principle of open justice effected by section 71A. To the extent that the few adversely affected by publication of identity, their personal interests are outweighed by the greater public interest in adhering to an open system of justice.

He goes on to say later:

Removal of the automatic prohibition on publication of identity in these cases will remove the source of rumour and innuendo which currently accompanies the charging of sexual offences in any cases which attract media interest. Publication of identity might also promote the possibility of witnesses coming forward.

Consistent with the Labor government's lack of commitment to transparency and full debate, I understand the Martin report has not been publicly released. I formally ask the government to table the report. I further ask the minister at the second reading summing up stage, if the government will not table the report, whether there is any reason I should not table the copy I have. In considering the bill and my alternative amendments, I would want all members to have access to the report on which both their bill and my amendments are based. In any event, the government has rejected the primary recommendation of the independent Martin review. On 21 November 2011, the government announced that it would implement recommendation 4 of the Martin report and merely amend the Evidence Act 1921.

The government's bill, the Evidence (Reporting on Sexual Offences) Amendment Bill 2012, gives courts the power to lift the suppression of the details of people accused of sexual crimes and details of the proceedings if there is a strong public interest in so doing or if the court is satisfied that it may assist in the investigation on the offence.

The government is maintaining the presumption of secrecy, supporting Adelaide's moniker as 'suppression city'. Perhaps this is part of the Weatherill government's state-branding endeavours. This is not the first time these provisions have been reviewed and considered, and it is not the first time that the opposition has called for the veil of secrecy to be lifted. In 2006, the Legislative Review Committee reviewed and reported on the Evidence Act 1929 in relation to section 71. Again, the opposition supported reducing our state's reliance on suppression orders.

Earlier in this parliamentary session, I introduced the Evidence (Suppression Orders) Amendment Bill 2012 in an effort to increase transparency and make justice more accessible. This bill would have, amongst other things, repealed section 71A(1) and (2).

The courts need the ability to give appropriate directions in all the circumstances to protect the presumption of innocence and to prohibit publication of evidence and identity if the prohibition is required in the interests of the administration of justice.

The government has taken over year to act on the recommendations of the Martin report, even when the then premier acknowledged that this issue was a matter of public concern. Now the government has rejected the primary recommendation of the report and implemented the third alternative. Again the Liberal opposition is committed to increasing transparency and the accessibility of justice. The government has resisted our efforts to reduce South Australia's reliance on suppression orders.

The Martin report emphasises that open justice is a part of the proper administration of justice and that it is enough that section 69A of the Evidence Act empowers courts to override the public interest in open justice by making a suppression order where it is necessary to prevent prejudice to the proper administration of justice. I urge the council to support the opposition amendments to this bill.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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