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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-15 Daily Xml
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EVIDENCE (REPORTING ON SEXUAL OFFENCES) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: If I could quote my second reading contribution, this is Legislative Council Hansard 18 October 2012, when I said:

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 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.

I ask the minister at this stage: is there any reason why I should not table the report, considering that she failed to address that question at the second reading stage?

The Hon. G.E. GAGO: Would you please repeat that? Sorry.

The CHAIR: Referring back to your second reading speech?

The Hon. S.G. WADE: Yes. At the risk of repeating myself for the third time, on 18 October I said:

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 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.

The Hon. G.E. GAGO: I have been advised that it is the prerogative of the member to table it if he wants to.

The Hon. S.G. WADE: As the government has provided no reason for the report not to be tabled, and I can see no reason why it should be, I hereby table a copy of the Martin Report. I should stress that the copy that I was given lacked the attachments and so the copy I am tabling lacks the attachments. As I said, I am keen for the report to be tabled, considering the bill and my alternative amendments relate to it. I do find it disappointing that here we are at the committee stage and, having raised it at the second reading stage, the government did not take the encouragement to actually table, although I acknowledge the Hon. Mr Darley and the Hon. Ann Bressington have contributed to this debate, and they and other members would have had the benefit of not just my quotations from it, but the full report. I would encourage the government to do the council the courtesy of tabling the attachments so that members and the public could have the benefit of a complete report.

Since the attorney's office became aware that the opposition has a copy of the report, they enquired as to how we obtained it. Ironically, we got it from the Attorney-General's office. It is incredibly ironic that the government has been so concerned about a report being made public which extols the need for transparency and the reduction of suppressed information. A constant frustration suffered by the Opposition and other members of this council, is that the government insists on suppressing public documents. In this case, I understand the government would not want the report to be available because it highlights the flaws in their own argument on this bill.

The Martin Report came to the conclusion that sexual offences should be treated the same as other offences and that the public interest should come first. I acknowledge the contributions of the Hon. John Darley and the Hon. Ann Bressington in the second reading stage. While they have come to different conclusions from the Liberal opposition, I appreciate their concerns. In any case, the fundamental choice that faces us is between openness and confidence in the administration of law and the risk of reputational damage to individuals. The Liberal opposition has made its choice clear, and I look forward to speaking to our amendment at clause 4. In any case, the fundamental choice that faces us is between openness and confidence in the administration of law and the risk of reputation or damage to individuals. The Liberal opposition has made its choice clear, and I look forward to speaking to our amendment at clause 4.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Page 2, line 12 to page 3, line 32 [clause 4(1) to (5)]—Delete subclauses (1) to (5) (inclusive) and substitute:

Section 71A(1), (2) and (5)—delete subsections (1), (2) and (5)

The amendment deletes subclauses (1), (2) and (5). Section 71A(1) and (2) of the Evidence Act 1929 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.

These provisions put a presumption on secrecy rather than transparency and treat offences of a sexual nature in a manner different from other offences. As I have referred to previously, in September 2011, the Hon. Brian Martin OA QC, former chief justice of the Northern Territory, handed down his report as an independent review of these provisions. 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 couple of passages from 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 affected by section 71A. 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.'

Later in his report he goes on to say:

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.

The government has rejected the primary recommendations of the independent Martin review. My amendment seeks to implement it and to repeal section 71A(1) and (2). Courts will retain the ability to give appropriate directions in all the circumstances of a sexual offence charge to protect the presumption of innocence by prohibiting publication of evidence and identity if the prohibition is required in the interests of the administration of justice. I urge the council to support the opposition amendment to this bill.

The Hon. G.E. GAGO: The government opposes this amendment. The Hon. Stephen Wade seeks to amend the bill to reflect the private members' bill introduced by the honourable member on 13 June 2012. The opposition's approach to section 71A is to remove all restrictions on the reporting of the identity of the alleged offender or information about the offending.

The government's approach to this section was canvassed in detail by the Attorney-General in the other place. To summarise, the government's approach adopts one of the recommendations from the Hon. Brian Martin AO QC 2011 report into the operation of section 71A, so he has actually recommended this. There was also a recommendation that section 71A(1) and (2) be repealed but the Hon. Brian Martin AO QC noted that these recommendations represented his personal view and that there is no right answer and opinions can legitimately and reasonably vary.

The majority of the submissions made to the review supported the retention of section 71A(1) and (2) in at least some form. Some confidential submissions gave detailed accounts of the detrimental effect that a publication of allegations of sexual offending had had on the accused and his or her friends and family. These stories were not only from accused persons but from friends and family members who had experienced harassment, prejudice and threats, despite an eventual finding of not guilty or the dropping of the charge.

The provision of 71A ensures that publication of the name of an alleged offender or the details of an alleged offence must wait until beyond the very early stages of the investigation and charge. The bill allows publication to occur earlier if the court considers that such publication may assist in the investigation of an offence or is otherwise in the public interest.

The Hon. S.G. WADE: I would not want the chamber to be misled by the way that the minister expressed Justice Martin's recommendation. I presume that most members have not had the opportunity to read the report that I tabled a short while ago, so I will read out the recommendations of the Hon. Justice Martin. It is true that Justice Martin recommended what is in this bill, but it was the least preferred recommendation; it was a tiered recommendation. What is contained in my private member's bill in the first part of this year and in this amendment now is Martin recommendation 1. Let me read it out:

I recommend:

(1) section 71A(1) and (2) be repealed;

(2) if section 71A(1) and (2) are repealed, I do not recommend any other amendments;

(3) if recommendation 71A(2) is retained in its current form, section 71A(1) be repealed;

(4) if either subsections (1) or (2) of section 71A is retained in its current terms, a court be given the power to permit publication—

etc., much as in the terms of this bill. For this government to suggest that this course of action is recommended by Justice Martin would be a misrepresentation of his report. I should not say 'recommended by Justice Martin' but I should say 'preferred by Justice Martin'.

The Hon. M. PARNELL: I accept what the Hon. Stephen Wade says in relation to Justice Brian Martin's report. However, our view was that His Honour did go too far in seeking the removal of these sections from the statute, so the Greens will not be supporting the Liberal amendment.

The Hon. D.G.E. HOOD: I must say, my colleague the Hon. Rob Brokenshire and I normally find it easy to agree on amendments. I think in 90 per cent of the amendments that we deal with in this place our discussions are fairly brief because we are in natural agreement on most things. This one has been more difficult for us. I think there are genuinely good arguments on both sides.

None of us would want, in any way, for a sexual offender to be protected unnecessarily and, equally, none of us in this place would want somebody to be exposed as an alleged sexual offender if that were not the case. We have had several discussions but, on balance, we have decided to not support the amendment. However, I must say it is one of those where, as I say, there are good arguments on both sides.

Amendment negatived; clause passed.

Title passed.

Bill reported without amendment.

Third Reading

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) (15:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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