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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-07-02 Daily Xml
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Statutes Amendment (Vulnerable Witnesses) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. T.A. FRANKS (16:41): I rise on behalf of the Greens to speak to the Statutes Amendment (Vulnerable Witnesses) Bill 2015, an important piece of legislation. The Greens support this bill and will certainly not be seeking to amend it in any way. We welcome its passage and, indeed, hope it is a speedy debate.

The bill before us was introduced in response to a very disturbing case in which charges of sexual abuse against a bus driver were dropped. The alleged victims, who were the seven children, were seen as unreliable witnesses because they were intellectually disabled. These children were denied justice. That is something this bill will not fix for those children, but let us hope that in the future we will see justice implemented for future victims. This is something that we, as a parliament or as a society, cannot accept, that such children were failed by our judicial system.

This bill builds on the Disability Justice Plan 2014-17 and seeks to make a number of important reforms. In particular, the bill aims to make South Australia's criminal justice system more accessible and more responsive to the needs and interests of children and people with a disability—be they victims, witnesses, suspects or defendants—and we welcome that.

The definition of vulnerable witness is clarified under the Evidence Act 1929 to include cognitive impairment, and extends the age of a young child from a child of or under the age of 12 years to a child of or under the age of 14 years. The bill also amends the Declaration of Principles in section 6 of the Victims of Crime Act to include specific reference to both physical and intellectual disability.

We thank and commend the Hon. Kelly Vincent MLC, and Dignity for Disability, for her and her officers work on this important reform. We also commend the Attorney-General's office for their commitment to this legislative reform we see before us. With those few words, the Greens look forward to the successful passage of this bill.

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (16:44): I thank honourable members for their contribution. The Statutes Amendment (Vulnerable Witnesses) Bill is an important measure. The bill builds on earlier reforms and makes major changes to the Evidence Act 1929 and various other acts to help make the criminal justice system more accessible and responsive to the needs of both children and people with a disability, whether as witnesses, victims, suspects or defendants.

I thank the opposition for their constructive approach on this bill. I would also like to highlight the valuable contribution earlier today from the Hon. Kelly Vincent MLC, who is a constant advocate and very constructive in this place on disability matters, and also the Hon. Tammy Franks, whose contribution we have just heard.

The bill is closely linked to the government's Disability Justice Plan. The plan was developed in close consultation with people with lived experience of disability. The Disability Justice Plan includes two particular projects to support the operation of the bill. First, there will be specialist training to be delivered to investigative interviewers working with vulnerable witnesses in South Australia Police, Child Protection Services (SA Health), Families SA (Department for Education and Child Development, DECD), the Care and Concern Investigations Unit in DECD and the Department for Communities and Social Inclusion. The training will assist in implementing the proposed amendments to the Evidence Act 1929 to allow for the administration of an audiovisual record of an investigative interview at trial as a substitute for that witness's examination in chief.

Secondly, the bill provides for the important role of a communication assistant to facilitate communication between victims, witnesses, suspects and defendants with complex communication needs and members of the criminal justice system. A specialist scheme will be established as part of the Disability Justice Plan to provide what are known in the bill as communication partners. As stated in the Disability Justice Plan, the service will be established in the non-government sector. The communication assistant model and market approach is currently being finalised in consultation with criminal justice agencies.

The Hon. Mr McLachlan has raised in the debate three concerns expressed about the bill by the Law Society. First, the Law Society is concerned about proposed section 21(7) of the Evidence Act that prohibits an appeal based on a determination of whether a witness is compellable to testify in criminal proceedings. This clause draws on the advice of the Solicitor-General. Why should an accused, otherwise lawfully convicted of an offence, be permitted to take advantage of a failure to afford a close relative the protection contained in section 21 of the Evidence Act? There seems to be no reason why a conviction obtained in a purported breach of section 21 should ever be able to supply grounds to consider that a miscarriage of justice has occurred.

Section 21 does not afford an accused any right. The section gives a right to a prospective witness to make an application to the court to be exempted from giving evidence. This section is concerned purely with the court and the entitlement of a prospective witness not to testify. Any appeal grounded in a breach of section 21 is unlikely to succeed, if for no other reason than that the proviso would be routinely invoked. However, that does not assist a complainant who must anxiously await the outcome of any appeal.

It is prudent to make this point clear. Any purported breach of section 21 should not be able to form the basis of a successful appeal by a convicted defendant. This section does not prevent an appeal based on the content of the evidence given by a witness who was not afforded an exemption under this section. It merely prevents an appeal being instituted based solely on the discretion of the court to compel a witness to give evidence.

Secondly, the Law Society supports the policy behind the new section 34LA, but it argues that the clause goes too far in allowing the admissibility of hearsay evidence. The government does not accept this view. New section 34LA has been carefully drafted with the advice of the Solicitor-General and it is a strictly limited exception to the hearsay rule. It will only arise where the out-of-court statement of the vulnerable party has both probative value and reliability. There are various similar common law and statutory exemptions to the hearsay rule.

The Law Society has expressed the view that there should be an amendment to section 34LA so that an out-of-court statement can only be admitted if it has sufficient probative value to justify its admission, but that is the test that is already explicitly stated in section 34LA(2)(d).

The proposed new section avoids the problems that have plagued the old section 34CA. The new section 34LA is only designed to operate where the vulnerable party is unavailable to testify and be cross-examined. To that end, the section provides that the court must warn a jury to treat the evidence with particular care because it is not being tested by examination or cross-examination of the maker of the statement.

Thirdly, the Law Society queries the proposed new section 67H to extend the protection given to sensitive material to include the audiovisual record of an investigative interview with a vulnerable witness and the transcript of such an interview. It is hard to understand this concern. The proposed new provision is not new but rather draws on the existing powers already provided to the Director of Public Prosecutions to protect sensitive material under the present sections 67G, 67H and 67I of the Evidence Act. The prosecuting authorities under the present legislation have the power to restrict access to anything that contains or displays an image of a victim or an alleged victim of a sexual offence.

The amendments simply make plain that the section applies to the audiovisual record of an investigative interview with a vulnerable witness and the transcript of such an interview. An audiovisual record of an investigative interview with a vulnerable witness and the accompanying transcript will often contain sexually explicit, confronting and sensitive material. Access to such material by an accused should be carefully controlled and regulated.

An accused is not denied access to such an item as it is feared by the Law Society but access can and should be carefully regulated. An accused should not have unrestricted access to such a sensitive item or be able to retain it. Such an item could all too easily be misused or disseminated by an accused. It is right to extend the DPP's already existing powers to be able to safeguard access and retention to such sensitive material.

I can advise that the government, as has been foreshadowed, will be moving at the committee stage several minor changes of a purely technical nature to deal with a drafting issue recently identified. I commend the bill to the house and look forward to its swift passage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I would like to put on the public record that at my second reading I raised a number of issues which the Law Society had raised and those queries have been satisfactorily addressed to the satisfaction of the Liberal Party by the minister in his recent address to this chamber. We will be supporting the progress of the bill and the government amendments.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. K.J. MAHER: I move:

Amendment No 1 [ManInn–1]—

Page 3, after line 20—After subclause (2) insert:

(3) Section 50B(2), definition of sexual offence—after paragraph (e) insert:

(ea) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or

This amendment and the ones that follow clarify that the offence of sexual exploitation of a person with a cognitive impairment pursuant to section 51 of the Criminal Law Consolidation Act 1935 is included in the class of sexual offences to which the bill relates.

This is a new offence that came into operation on 30 March 2015 and is not specifically listed as a sexual offence for the purpose of the bill. This offence is aimed at protecting vulnerable adults from sexual exploitation. The bill improves the position of this class of witness in the criminal justice system, and this amendment and the ones that follow are necessary to ensure that the various reforms that the bill makes to different acts to assist vulnerable witnesses apply to victims of an alleged offence under section 51 of the Criminal Law Consolidation Act.

This specific amendment inserts section 51 of the Criminal Law Consolidation Act 1935, the sexual exploitation of a person with a cognitive impairment, into the definition of 'sexual offence' as contained in section 50B of the District Court Act 1991, providing that trials of an alleged offence under section 51 of the Criminal Law Consolidation Act are included as trials of sexual offences that are given priority if the alleged victim has a disability that adversely affects a person's capacity to give a coherent account of the person's experiences, or to respond rationally to questions.

The Hon. K.L. VINCENT: Just for the record, on behalf of Dignity for Disability, these are purely technical amendments that bring this bill into line with legislation already passed by this parliament previously to do with aiming to protect people with cognitive disability, which affected their capacity to consent to sexual acts, to make it clear that the abuse of power, for example, where a disability support worker might use their position to gain sexual favour from a client who could not consent, is illegal. These are technical amendments to bring it into line with previous legislation passed that was supported by Dignity for Disability. Accordingly, we will also support these amendments.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 2 [ManInn–1]—

Page 4, after line 15—After subclause (2) insert:

(2a) Section 4, definition of sexual offence—after paragraph (da) insert:

(db) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or

This amendment is consequential on amendment No. 1 and clarifies that the new offence of sexual exploitation of a person with a cognitive impairment, pursuant to section 51 of the Criminal Law Consolidation Act, is included into the definition of 'sexual offence' as contained in section 4 of the Evidence Act.

Amendment carried; clause as amended passed.

Clauses 6 to 20 passed.

Clause 21.

The Hon. K.J. MAHER: I move:

Amendment No 3 [ManInn–1]—

Page 17, after line 6—After subclause (2) insert:

(3) Section 48B(2), definition of sexual offence—after paragraph (e) insert:

(ea) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or

This amendment is consequential.

Amendment carried; clause as amended passed.

Clauses 22 to 25 passed.

Clause 26.

The Hon. K.J. MAHER: I move:

Amendment No 4 [ManInn–1]—

Page 19, after line 28 [clause 26, inserted section 74EA(2), definition of sexual offence]—Insert:

(fa) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or

The amendment is consequential to amendment No. 1.

Amendment carried; clause as amended passed.

Clauses 27 to 31 passed.

Clause 32.

The Hon. K.J. MAHER: I move:

Amendment No 5 [ManInn–1]—

Page 23, after line 3—After subclause (2) insert:

(3) Section 126A(2), definition of sexual offence—after paragraph (e) insert:

(ea) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or

This amendment is consequential to amendment No. 1.

Amendment carried; clause as amended passed.

Clause 33 passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (17:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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