Evidence (Reporting on Sexual Offences) Amendment Bill

Second Reading

I will start by addressing matters that have been raised by the member for Mount Gambier, who has indicated that he will not be supporting the bill. I fully respect the matters that have been outlined by him and the decision that he has come to in relation to his proposed opposition to the bill. He has outlined a number of aspects of the Law Society submission—received in July this year, predating of course the major indictable reform report that was been prepared but, nevertheless, taking into account a submission that was made back in 2011 when the Brian Martin review was published—and the view then of the Law Society president Ralph Bonig.

What is omitted, and I ask that the member at least to reflect on this to some degree, is the whole legal process after a person has been charged. I leave aside the investigation stage by police or other integrity bodies in relation to the development of a case to identify if there is a prima facie case for someone to be charged, because that is a whole other area.

In relation to that assessment, a person has been charged with an offence, any offence, and it then becomes a matter for consideration by the court process, the courts of course being independent of the executive of government, independent of the parliament, and their role kicks in, so to speak. What is important, and underpins the transparency of the court process, is that it also needs to have the sun shine on it to ensure and reassure, from the public's perspective, that there is a system that operates to interrogate that independent process.

There are some exceptions to that, where the court wraps around itself some secrecy—for example, when a child is going to be giving evidence. I should indicate that the Family Court makes the decision under its law that its cases are kept private and secret, they are not available for anyone in the public to just turn up, and there are reasons for that. But, as a general rule, the whole court process is on show and accessible to the public, just like we are here in the parliament: we are on show and we are available for scrutiny by the public, who can then examine what we say and what we do (or fail to do) and consider their own verdict. That is an important piece of the jigsaw in making sure that we have a transparent system.

The question of the damage to someone who is falsely accused of a child sexual offence (and I think this is where the key element is here—not any sexual offence, but a key sexual offence against children) is one that has obviously been in focus in the last 15 years or so. In fact, in the time I have been here in the parliament there have been two royal commissions and multiple inquiries in relation to various aspects of this behaviour. It is a compelling argument for consideration.

There was a time when a sexual offence against a young woman, in which she would be defiled by virtue of any allegation of sexual impropriety for the purposes of affecting her prospects for marriage, for example, was an era in which, if someone had had intercourse before marriage, that might not be a useful entry into opportunities for marriage. Generations ago that was a stamp against them, which would mean that it was important that we reflected that in the laws that prevailed at the time. We had breach of promise laws, we had circumstances that surrounded that relationship and the potential that it would damage someone's reputation so badly that it could not be made public.

Today, I think it is fair to say that young women (I generalise here) are not offended by the prospect that their virginity, or the lack thereof, might be in some way exposed publicly, and their prospects of marriage would not be a major factor. I suspect they would be hot to tell if there had been a circumstance, and the 'Me Too' campaign around the world is probably indicative of that. Women of today, especially when someone else has come forward, are much more likely to come forward, as are young men who might have in some way had sexual advances made to them or, worse still, other acts of indecency against them, so it is important that we recognise someone who might be falsely accused.

I also ask that the member appreciate two things. Firstly, people can be very badly affected by a false allegation, no matter what it is. If you are an accountant, for example, and you are falsely accused of having stolen money from your boss, you can imagine how that would impact on you and the fragility of the circumstances that that would impose on your mental wellbeing and how the option for suicide may be insurmountable. Whilst I appreciate that child sexual abuse is a heinous crime, we have many other heinous crimes. Whilst I appreciate that to be falsely accused of a crime that is heinous may cause irreparable damage to the mental wellbeing of the accused, we also have to remember that others may be in that category.

Secondly, I ask members to remember that just a few weeks ago we were debating an amendment to a bill that related to the disclosure of information under a working with children check. This is a process that we have in our law nowadays that enables certain persons at certain times to have access to the entire record of somebody rather than just their convictions. It is very selectively available for very discrete purposes. In this case, if you want to take up employment or voluntary work in a circumstance where you are going to be working with children, then a very high bar is set for the threshold of matters to be taken into account before employment or voluntary work is allowed. It is a very good reason.

Those allegations, which do become available in those discrete circumstances and deprive somebody of an opportunity of employment, have very big consequences. People lose their jobs, they lose their livelihood, they lose their capacity to be able to provide for their family or even themselves. It can have a devastating effect on them. Just to be in a circumstance where you are excluded from a workplace and you are not able to be part of the community in your workplace world can have horrific consequences, so we need to be mindful of that as legislators at any time.

In relation to these matters, the Law Society's view on this does not surprise me. Last year, the previous president had been asked to comment about the proposed law that was considered at that stage. He made the point, 'Look, we would like to keep it to avoid the reputational damage of people in these circumstances in these particular offences, but we accept that we are out of sync with the rest of Australia.' So there is, I suggest, a qualification with that, but for the moment that is their position. We have certainly taken it into account and appreciate it.

The members for Badcoe, Heysen and King have also made a contribution. I thank them all for that. The member for Badcoe raised a few things, and I would like to report on them. Firstly, in relation to her not having had a briefing, I have been advised that that is the case. I would like to place on the record that, whilst I see that as regrettable and note that she might wish to ask further questions during the period the legislation is between the houses, and we will endeavour to make answers available to her, the shadow attorney-general had been provided with a briefing. The shadow attorney-general had issued a notice of that to all members of the opposition. At the briefing the shadow attorney attended, a number of other members of the opposition in this house also attended.

Whilst I appreciate that the member for Badcoe has been identified by the opposition as the lead speaker on this matter, I am advised that there had been a briefing proposed. There was no indication back of whether or not that time was convenient. There was obviously some misunderstanding, from the opposition's point of view, as to whether or not that was the case, but on this side of the house we have tried, in government, to do much more than the previous government did.

In these cases, with the previous government I would get a notice of when the Attorney-General's people were available to meet and I would let my own people know, those I thought would have some interest in the matter. We have a practice of advising all members of when the briefing is, and if they are available or have an interest in a matter they are welcome to attend. We could go to the narrow version of the previous government but I do not want to do that because I think it is important for members to get information about a matter, particularly members who are Independents or in a minority party who may not have the benefit of a representative from their team being able to get that information. We are happy to try to answer any questions.

On the matter specifically raised by the member flagging that there would be consideration of an amendment requiring them, as an obligation on the investigating party—which, of course, would usually be the police—to consult with the victim, the new law would mean this would have had to occur before the first hearing date. Under that proposal, there would have been an obligation to undertake that consultation. We have spoken to the police about this matter and they are not supportive of that approach as a mandatory obligation. They raise a number of issues, but I think it is important that I flag this so that the member for Badcoe can make the inquiry herself regarding whether she thinks this is a practical proposal.

As to who has been doing the investigation, the availability or details of all the victims, the notification of them, I am advised that the current process—certainly from the DPP's point of view—is that where a victim is identified obviously they are part of the process for the case. If they are a child, their parents are consulted in relation to medical assessments and so on and all statements being taken, and if they are an adult they are also part of that process for the gathering of evidence, witness statements and the like.

In fact, we are so keen on this in our DPP that we have employed a new and most valued employee, and that is Zero, our witness assistance dog, who comes to work every day—and who, I hope, will be featured in my Christmas card. In any event, he does much more important work every day in providing an environment, in his presence, to ensure that witnesses, particularly children, are able to be in a calm state for the purpose of giving evidence and/or their statement for committals and the like.

In our department, we are very keen to make sure we do everything we can to support witnesses, and I am advised that obviously they are a key part of that, in particular in circumstances where there is intrafamilial abuse. This is probably the most destructive area from the point of view of a victim, where the offender against them is not someone who is their institutional provider—that is, a teacher or a church representative, which we know a lot about from royal commissions—but is, in fact, a member of their own family.

This can sometimes be the most distressing thing for the victim. I think that that is something we have to consider for the purposes of the release of information and in cases where there has been abuse such as this. This is a very key part of the basis upon which an ongoing suppression order is made. It does lead to the question, for example, of the local community matter that has been raised, where people have even been convicted and still the local community are not made aware of that information because the community is so narrow in number.

This happens perhaps more than people appreciate in the interests of protecting the victims, who may be, say, children of the offender or in a very small country community. This is a really difficult situation. To reassure the house, I say that we and the DPP's office take very carefully our responsibility to ensure that victims are supported during this process and consulted in relation to that. I urge the member to look at that matter more carefully and to certainly consult with the police because we are moving the threshold gate to the first hearing date.

In the last few days, I was also minded to think of the disturbing situation where the child of mass murderer Ivan Milat has come out publicly to tell of her grief and her circumstances. I reflect on it because she is now a woman, apparently in her mid-50s, who has had to live with the odour of her father being a convicted multiple murderer. As we know, he recently died. I think there are probably very few people who would be unhappy about that, but the reality is that the children of offenders, even if they are not a brother or sister of a sexual offender, are indeed also victims in these processes. I think that should not be ignored because they have to live with the circumstances also.

One of the arguments that is frequently raised by counsel representing the accused is that the innocent children of the family, or a spouse, might be unfairly dragged through the media coverage as a result of their father or mother being exposed in a publication as a result of a matter being in court. But these are all things that have to be balanced in a transparent environment in a court, which is what the bill will retain: the special arrangements to be continued on that. I seek leave to make further remarks.

Leave granted; debate adjourned.