STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 February 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (12:02): I rise to speak on this bill to indicate that substantially we will be supporting the bill and—

The DEPUTY SPEAKER: I have just been asked to establish that you are the lead speaker.

Ms CHAPMAN: Correct. The government introduced this bill on 24 February indicating that it was to deal with 'minor errors, omissions and other technical deficiencies in legislation', and it is fair to say that after having the briefing with representatives from the Attorney-General's Department and, indeed, the minister's office, that for a substantial part of this bill, that is exactly so. I also had sought some further data in respect of some of the matters and confirm that that information has been received, and I thank those officers responsible for preparation of the same.

Essentially, the areas of reform and amendment to legislation cover a number of areas, and I will summarise those to indicate our agreement to the same. One is in respect of forensic procedures, and essentially the legislation catches up with the current contemporary terminology, but also to some degree allows for other qualified persons to undertake various procedures. This is in two categories: one, to enable police officers of a lower rank to be involved in some of these, including the taking of tests; and, secondly, from the Coroner to police officers. We do not take issue with those. Probably there will be some questions about justification in doing that but essentially we do not take issue with that.

There is a second tranche of reform to deal with the new and contemporary use of 'cognitive impairment' instead of the term 'mental disability', and that has required some amendments, and we support those. I note that yesterday we were dealing with the Mental Health Act and a review of some of that legislation, so I am not quite sure why that is not being updated as well in our health legislation.

Nevertheless, in the criminal law and in respect of the protective laws for our citizens, a whole new tranche of legislation has come into effect largely to enable vulnerable parties, people with a cognitive impairment, to be able to have offences against them successfully prosecuted by lowering the bar of admissibility of the evidence obligations.

The third area relates to a liability for an apology and is to clarify in the Civil Liability Act so that there is full legal protection given to a person in civil proceedings to deal with a circumstance where an apology is given. It purports to come from a request of the State Ombudsman on 20 November 2014 in which he did an audit of state government agencies. It was a fairly scathing report, I might say. In any event, two years later that is being implemented.

I point out here that although he expressed concern about the reticence of people coming forward and saying, 'I am sorry, I apologise for what has happened,' even if they do not take direct responsibility for having inflicted some harm or hurt to somebody, there is clearly benefit in being able to have parties come together and for one or other to acknowledge at least that they are sorry for what has happened and in a way to heal that issue, that rift, before it gets into ugly litigation or a greater confrontation between the parties.

Unsurprisingly, this piece of legislation comes to the parliament, not just because the Ombudsman has asked for it, but because most often what he is dealing with is an apology from government departments or departmental officers or people in the purview of responsibility to the government who have acted either inappropriately or have failed to act or neglected to act, and their conduct or their omission has resulted in somebody missing out on something.

Everyone can read the Ombudsman's report each year because his job is to be a recipient of concerns and complaints by the general public. Largely, they are taken up in areas nowadays of prisoners who complain about some loss of benefit in the prison; the education department, which can be anything from not having the right teacher to a parent's complaint for their child at school, across to serious errors of conduct on behalf of a departmental officer or a school; and finally, areas in Department for Families and Communities which have had an explosion of complaints for obvious reasons. Other smaller departments have some response as do local governments.

Remember nowadays that we have a separate complaints person, a health and community services complaints commissioner, for the health department, with private health and community services in a separate wing of that complaint structure. Of course, we have a number of other integrity offices—the Office for Public Integrity, ICAC and a separate police ombudsman which, for obvious reasons, is to protect the integrity of criminal intelligence and the like. So, we have a pretty busy process. Civil liability applies to everyone, including the government. I will make the point here that the people we are trying to get to say sorry are people who work for the government.

Next is the areas to remit a case for resentencing, which relates to a Full Court decision and which requires amendment, and we support that. As to accessibility to court records, I will come back to that in a moment. There are some electoral reform amendments which we have accepted and which reflect the intent of what the original amendments to the Electoral Act were to do. We have some vulnerable witness legislation amendments, particularly to the Evidence Act, again to deal with definitions, for example, of complex communication need and the like. Some of these may not help a lot, but we will support the government in the hope that they do.

This amendment will remove the current maximum age for a juror to be 70. So you can be selected and go on a jury when you are over 70, but you have the right to opt out pretty much automatically from jury duty if you do not wish to do it; and that is something that we accept. Obviously, we welcome the contribution of the mature aged in serving in this capacity. There is an expiry issue in relation to subordinate legislation—we have no problem with that—and then there is the updating of languages for electronic recording.

The two areas in the bill which I particularly wish to address are the amendments to the Intervention Orders (Prevention of Abuse) Act 2009. With that bill being opened, I propose to move amendments which are standing in my name (filed 8 March) which relate to the duration of intervention orders, and I will address those in committee. They are for the government to be aware that that is to incorporate what I had in a private member's bill but which I have now withdrawn, and I will be seeking to have those amendments made to the act via this bill.

The second and most controversial area is in respect of the government's proposal to change the rules of accessibility to court records. The government will have seen the amendments tabled that oppose the changes to the Magistrates Court Act, the District Court Act and Supreme Court Act proposed by the government. We will be seeking to delete parts 7, 12 and 17 of the bill relating to the government's initiative (which is the kindest way I can describe that) in this bill.

The third area is not the subject of the material within the government's proposals but an area to which I will seek to move in a third set of amendments to amend the Criminal Law Consolidation Act 1935 while it is open. I will be seeking to make provision for the protection of children against prosecution of pornographic charges. I do so in light of the government's introduction of a new level of proposed criminal offences, namely, offences under the Summaries Offences Act, dealing with sexting and revenge pornography.

This is consistent with advice that we have received during our consultation, in the circumstances where child pornography laws will still prevail and where children have been charged with pornography charges, and where there is the need to ensure that they be protected in the circumstance where, if I could say, a mere sexting offence could suffice and be protected against an unfair prosecution as a child offender charged with pornography charges. We will introduce a clause to require the Attorney-General to be the gatekeeper and give consent before that can occur.

Members may be interested to know that in the course of the government's promotion of the need for revenge pornography legislation and the acknowledgement that we do need to protect against unfair prosecution, even of sexting offences, where there has been inappropriate material published between, if we can say, two consenting children (that is persons under 18), the government acknowledged that one has to be careful and not over-zealous in declaring something as criminal conduct from the point of view of prosecuting children for what is juvenile, irresponsible behaviour.

We have a whole regime of laws that relate to youth offending, and we, in this civilised community, accept that they should be given a second chance. They even have a separate court, even though we have been fighting for a judge, of course, to stay as head of it. Nevertheless, we recognise the significance of understanding that young people will do stupid things—not all of them, but some of them will do stupid things and when they grow up or they mature or they learn from their lesson they should be given a second chance.

That is the principle that undermines criminal justice for children, and I certainly support it. I think that this will be an important initiative to protect, particularly as we are going to go into the realm, with that set of legislation, which will have our support but which will attract still the opportunity for children to be prosecuted. When the Attorney-General was questioned about children being prosecuted, children being on the child offenders' list, he has made this statement publicly that there are no children on the child offenders' list.

I have no reason to doubt that is the case now, but what we now find out is that a child was on the list, and the only reason he is able to stand up publicly and say that there is no child on the child sex offenders' list is because that child has now turned 18. If he was fully frank with the public he would have said, 'No, there are no children on the child offenders' list, but it has occurred, and we want to make sure that, in certain cases, children are protected against that.'

As it turns out, I am advised—and I have no reason to doubt—that the person who was on the offenders' list, the child who is now an adult, has been convicted of serious pornography offences. As I say, I have no reason to doubt that it is a situation where the prevailing circumstances, the seriousness of the offence, would justify that occurring, but for my satisfaction, consistent with the way we should be treating our youth, I want there to be some protection and for someone to have a look at it before a prosecution proceeds of the serious charges of pornography against the child—not the sexting offences because I think the DPP and others can deal with that responsibly and we do not need to have a separate gatekeeper However, for that reason I will be proposing a third amendment to this bill.

Let me return to the government's proposal that we change the law in respect of accessibility to court documents. At present, remember, we have a situation where our courts, like our parliament, are under the scrutiny of the public. One of the great opportunities the public has to scrutinise what we do or what happens in courtrooms, to ensure that there is a public accountability and a transparency of what we do, is that we have open courts and we have open parliaments. People can come in here and sit in the parliament or sit in the courtroom and view what happens, listen to how it works, to be able to shine a light on the accountability of those processes.

Largely, we do not have star chambers in our state. We do not have secret hearings. We have special provisions when a child might give evidence in a court, or indeed when there is a circumstance in the parliament when there are committee witnesses giving evidence, for example, to a committee, which we protect against the public glare at the time until the committee concludes its reporting and then, of course, that material can be available once it is tabled in the parliament.

The government has inquiries from time to time—royal commissions and the like—and those inquiries sometimes receive evidence in secret, that is, they are not in a public environment. We have the royal commission happening at the moment in respect of children's services in this state conducted by royal commissioner Nyland and she has elected to hear a number of witnesses and receive evidence without the glare of public attendance. There can be good reason for the exception, but that is the exception.

One of the other ways that we do it is to make sure that what we say in courtrooms via judgements of judges or what we say here via our able people in Hansard is placed on an electronic record on a website so that it is available for the public to view it, read it and know what is going on. This is the means which is probably the most instant for most people who do not, frankly, have all day to sit in courtrooms or parliament or, indeed, even to go online and read it all. Representatives from the media come here and go to courtrooms and read the reports and judgements and look at the court files and protect us by having the capacity to publish information about what is going on in these important institutions.

It is particularly important in courts because we have a separation of powers and an executive which is supposed to be accountable to the parliament. We have the judiciary independent of interference by the executive. The Attorney-General cannot ring a judge and say, 'I want this person to be guilty.' The Attorney-General or the Premier cannot ring the police commissioner and say, 'I want that man prosecuted.' None of the ministers can ring commissioners of inquiry and say, 'Dud this person.'

We protect against executive interference, and the way that we do that is to make sure that these people have autonomous responsibility and they are protected by law from interference. Any of the ministers—or any of us, for that matter—cannot ring up the DPP and say, 'I want this person's backside. I want this person charged. Please proceed in that manner.' It is very important that we have that separation.

When the press, for example, or someone else wants to know what is happening in a criminal court, they can go down and watch and they can go and look at the court file, which will disclose a number of things. A number of them are pretty straightforward, such as: the name or names of the accused; the charges which they are required to respond to and for which they are being held to account; sometimes, some of the particulars of the offence; and early judgements and decisions of the courts as the criminal case progresses (on applications for adjournment, remands in custody, bail, committals to higher courts, and all those things). They can follow it and see what is happening, and that is a very important process.

Currently, if somebody goes down and gets information and reads the particulars of what somebody is charged with or the determinations that are there, or goes online (because some of this information is online), they can then either publish it if they are members of the press or members of parliament, for example, or the general public can go down and find this information and bring it to the parliament and raise concerns, etc. It is a transparent process. It is there for public accountability.

To ensure that criminal cases, in particular, are not derailed by information that is being worked on by the police or the DPP's office, there is frequently a situation where the prosecuting officer, whether it is the police or the DPP (sometimes it is the RSPCA, so there are certain other people who have prosecuting powers but, anyway, the prosecuting authority), goes down to the court and says, 'I want to make an application for the suppression of certain information. I want an order excluding people from having access to a certain set of pleadings, witness statements and viewing of evidence, and I want protection from that because it is going to interfere with the proper proceeding of that case and lawful prosecution.'

Sometimes it is other parties involved in the case: someone who might represent the defendant or someone who might represent a witness. Their counsel, or sometimes they make the application themselves saying, 'If this information gets out I will be unfairly prejudiced and I want a suppression order on my name, as the accused,' or a witness who says, 'I am going to be at risk in some way; I want protection.'

They have a process where they go down to the court, as we do in protecting certain witnesses automatically, like child witnesses, and they can make an application to the court to say, 'I need this document sealed,' or, 'I don't want there to be access to this material,' or, 'If there is access to this material, I want there to be an order saying there can't be any publication of that material,' usually pending the determination of the trial or inquiry. All of that is a totally appropriate process.

What has the government done here? What are they doing now to say that they need to amend this law in the Magistrates Court, District Court and Supreme Court where criminal cases are heard? Many members would know that every criminal case starts in the Magistrates Court and then is committed up to higher courts if it is a serious offence—largely; I am generalising here. Each of these courts frequently deal with this, and the biggest workload, of course, initially is with the Magistrates Court.

Often it is magistrates who are asked in the first instance to actually hear applications to either suppress evidence or to grant suppression orders in relation to certain information. It is a heavy workload, and we have an incredible number of suppression orders in South Australia. Some of it is because of the way that we count suppression orders. One case can have a number of suppression orders that are actually repeated over a period of time, and we count each one of them once. That can distort some of the comparisons with other states, but still we are pretty much known as the suppression state of Australia.

Our judicial people are very mindful of the importance of protecting people's rights and protecting the integrity of the prosecuting process to ensure that bad people do not get off and hopefully innocent people are not caught. They are pretty good at doing that and they are regularly called upon to do it. However, the government comes along and says, 'We need to make it harder for anyone, including the press'—because it is acknowledged in the second reading explanation that the press are included—'to protect against the giving of sensitive or private records held by a court.'

We already have a process to do that. In fact, the DPP has significant powers already—indeed, a responsibility already—to ensure that his cases are not derailed and/or his victim and witnesses and the like are not in some way prejudiced. As I said, he has the right to go into court to have information kept secret and sealed until that occurs.

What the government says is, 'We think it is also important that the defendants have the right to be heard on an application before the material gets out.' However, we are not talking about civil claims here, we are talking about criminal cases. Of course, the defendant needs to have rights, and they do. We have lots of laws to protect their rights. However, in this instance it is usually about protecting the records that are under the control of the prosecution, because defendants are not presenting their evidence at this early stage. It is the prosecution evidence that is so critical at this early stage, so I think that is a complete furphy.

I suggest to the parliament that the government bringing in the rights of a defendant suddenly to have a say about whether a document should be kept under wraps or whether evidence should be protected against publication, or a member of the press being given access, is a complete red herring.

It is quite unacceptable for it to be used as an excuse to restrict another party from what is the fundamental, basic requirement: that is, that people who are charged with criminal offences are entitled to have a day in open court, and are entitled to know what the charges are against them, etc. There is a long list of things to which they are entitled.

The primary basis of having all these rules is to ensure that innocent people are not unfairly and wrongly convicted, and that guilty people are convicted. It is a fine balance, but it is a very important one. What is completely unacceptable to me is the way in which the government have introduced this reform in the middle of a rats and mice bill. They have said, 'Look, here's a bill that we just need to tidy up as it has some minor errors, omissions and other technical deficiencies,' and snuck into this bill a provision to shut down real-time access to court information.

I do not doubt for one moment that the new process will so substantially delay the access to information in a timely manner that it will be lost. It will make it inalienable to the public. They won't know what is going on in the course. Remember, the public sit out there and they want to know who has been charged and what they have been charged with, and they might want to follow that hearing.

It might be an employee; it might be a neighbour; it might be someone that they think needs to be cleared or convicted one way or the other before they can advance, or before somebody might even let their children go and stay in their house. These are all fundamental rights of the public to know, and we do rely on members of the press, who have the responsibility to cover these important events.

The government's attempt to isolate the public from their right to know is scandalous. Here is the crunch: not only did they hide it in this little rats and mice bill, there was no mention when the Attorney-General went out publicly and said, 'I'm going to make sure that people who are over 70 can sit on a jury.' That was his bill press release; that was the big story of the day coming with this piece of legislation. There was no mention of what he was going to do in relation to quarantining access to the public.

Secondly, I would like to say that no only had he done that, but he did not even have the courtesy of presenting this bill for consideration to agencies representing the press—not the union, not FreeTV, the Press Association, News Corp, or any of the myriad of people out there who are responsible and are associations, employers or advocates. Not the Australian Journalists Association or union—nobody! Nobody got notice of what was going with this bill.

The audacity of the Attorney-General to even attempt to progress this after introducing it a couple of weeks ago, without even telling the Law Society of South Australia—he is supposed to be the representative on behalf of the lawyers. It will not surprise you to know that we have spoken to the Law Society. The Law Society have actually consulted with the criminal barristers on this issue, and, unsurprisingly, the criminal barristers say, 'Oh, okay; well, that's fine,' because they are representing the defendants. They would love everything to be a secret. The public have a fundamental right to know, and there is a whole structure of legislative protection against someone being unfairly treated, or even exposed to adverse publicity in a criminal trial.

The other thing is that if there is ever an example of the abuse of publication of material, or statements being made about people who are accused in criminal trials before there has been the finalisation of a prosecution, either culminating in a guilty plea, or a conviction by trial, it would be in the conduct of this government. The most scandalous of those cases resulted in the AttorneyGeneral trying to come down here and get rid of juries.

Fortunately, there was sufficient objection by this parliament to that outrageous suggestion that the bill lapsed. What I will say is this: it was the case of Shannon McCoole. We all know the tawdry detail of that case—I am not going to traverse it again, it has been across the newspapers, of course, in every detail over the last six weeks, or so, as Mr McCoole and other witnesses have appeared before the royal commission in respect of children's protection services.

As soon as Mr McCoole was arrested, we had the Premier go out and call a press conference. There were important people there—police commissioners, and all these people lined up behind him—and he stood up there and started talking about the acts of evil of this person. Unsurprisingly, it gets a headline. Single-handedly this government, but in particular the Premier, I would suggest, almost derailed the capacity for a fair trial in that case by making absolutely outrageous statements before they had even got to the committal hearing. The bloke had just been charged. As it turned out, he pleaded guilty to multiple offences: gross, indecent, disgusting offences in respect of child pornography and, apparently, we read that there are even more victims out there still to be considered.

We have a situation, though, where the government—so buoyed up by their own importance and their own audacious approach to what they think they can do anytime, anywhere—can go out and make statements, and yet in the next breath they can say, 'No, we can't have anyone else having access to information.' That is information that is on the court file and supposed to be on the public record, but, no, no-one else can be trusted with it. We have to ask the defendant whether they want to have a say about whether certain information is available, but the Premier can go out and call a press conference, detail a whole lot of information, and then, I think disgustingly, potentially prejudice a case.

Probably, in a case like that, had he not pleaded guilty, he may well have received advice to go for a trial by judge alone anyway. There would probably be no-one left in the state who could fairly say that they could be independent and without influence as a result of the publicity around that case—even before it got to trial. In any event, he pleaded guilty, and I see in the paper the other day that he has abandoned his appeal in respect of the sentence. I am pleased to say that for those who might have been hurt in some way—the families of those children involved, and his victims—that matter is apparently now at an end.

The government is inconsistent. They have their own set of rules for themselves, and they are wanting to quarantine the public from that scrutiny, that transparency, that sort of sunlight from executives and governments and the like that we expect to be the disinfectant on abuse.

Two significant representatives of the media have been in touch with me and, obviously, are very concerned. One of those is the representative for Free TV Australia. Julie Flynn, the chief executive officer, has sent me a fulsome letter in respect of the deep concern arising out of the proposal of the government in this area. If I were to just refer to a few of the comments made under the hand of Ms Flynn, and complemented by Ms Clare O'Neil, director of legal and broadcasting policy for Free TV Australia, who has been very helpful in her coordinating the advice on this matter. They say this:

These access provisions—

referring to all of the courts that we are talking about—

were originally ins erted to ensure that the public (including the media) had a clear right to inspect court records and to provide a mechanism t o facilitate that inspection. Over the years, the list of C ourt records to which the public has a right to inspect has been reduced and the list of records which require the permission of the Court has grown.

There is no uniform approach to accessing court documents across Australia n jur isdictions. Generally speaking... for cases heard in open c ourt in jurisdictions outside South Australia, it would be unlikely not to get access to material such as witness impact statements, photographs , and transcript s of preliminary oral evidence... particularl y if the material was tendered.

A transparent justice system and the public's right to know are a key characteristic of a democratic society. In Russell v Russell , Gibbs J stated that it is the 'ordinary rule' of courts of Australia that their proceedings shall be conducted ' publicly and in open view '; w ithout public scrutiny, ' abuses may flourish undetected ' .

This philosophy is reflected in [ and refers to certain sections ] of the Evidence Act 1929 , [ in respect of ] :

'...a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings. '

The other aspects of their submission on this preliminary viewing, bearing in mind they have only had days to be able to consider this, as the Attorney has not seen fit to consult them, is to confirm that the existing system we have for protection of private or sensitive records is already robust, there is significant oversight of it, it is exercised regularly in South Australia, and the protections are sufficient.

The impact, they confirm, and I think as I have outlined earlier, is that it would directly affect the news of the day—that is, where the people's attentions are to a particular offence or charge—and to be able to deny and delay and frustrate access is simply not acceptable. To go through a hearing and to be able to have the delay of that—to even find the defendant to serve them, to give them notice to come along and have a hearing and have a say, of course, will take weeks, or months in some instances. So, we have a situation where there would be a massive delay.

Who is going to pay for all of this? Who is going to pay for every time a news outlet wants to go along to court and have access to a court record, which will be on a daily basis? Who is going to pay for that? Who is going to send the DPP down there and pay for his representative to be there or the police prosecutor representative, or the counsel who are going to be there, the judge's time, court time? I do not even want to start today on the question of the court infrastructure we have, which is so appalling already, crumbling at the walls. The fact is that we have delayed justice already, we have shocking infrastructure, and now the government is wanting to impose this type of heavy-handed approach, which will be expensive and will obviously be totally inconsistent with other laws and the rights to access to this information.

Similarly, sentiments have been conveyed by News Corp, who have consulted a number of other personnel in respect of the bill. Their representative, Georgia-Kate Schubert, who is the head of policy and government affairs, has indicated that she is responding on behalf of AAP, ABC, APN News & Media, Australian Subscription Television and Radio Association, Bauer Media Group, Commercial Radio Australia, Community Broadcasting Association of Australia, Fairfax Media, Free TV, MEAA, News Corp Australia, SBS, The Newspaper Works and The West Australian regarding this. Well, good on her for taking the initiative and finding out what their view is, but it is pretty comprehensive: this is totally unacceptable.

I think the way in which the Attorney has approached this is shameful. It disgusts me that he has refused to even speak to the very agencies that are going to be affected by this, and has tried to sneak it into this bill. Leaving aside his reprehensible behaviour, the merits of the proposed legislation fail at every count, and therefore we should not support it. Irrespective of the conduct of the Attorney-General, this should not pass because it is wrong, and I call upon the government to understand the significance of what they are doing here, or what the Attorney-General is doing, and presumably of which they have approved because these things have approval by the cabinet to progress this legislation.

I expect that most of the time the cabinet listen to the Attorney-General and say, 'Yes, that sounds sensible, Attorney, we have read your briefing note, tick,' and probably for most of this bill they have done that. They may not have even gone into any detail on it, because nobody knew anything about it until the bill was tabled here in this parliament. That is, as I say, reprehensible conduct and it is bad government, and for any minister who sits in that cabinet, I say this to them: read the documents carefully; do not be fooled. I especially say that to members of the cabinet who are not members of the Australian Labor Party: be alert and be warned because this is coming.

I stood up here some months ago and gave recognition to Peter Greste, who had been imprisoned in an Egyptian gaol, a disgraceful example that had international recognition and outcry as a result of someone being incarcerated, basically, for speaking out against the government. It is not acceptable that the people of South Australia are going to be silenced because they are going to be kept ignorant because the press cannot even do the job that they are supposed to do: to ensure that we have the information that we can rely on.

The public dissemination of information will be undermined and there will be a gross miscarriage of justice to South Australians if this part of the legislation passes. So, I will be asking the parliament to support me in the second foreshadowed set of amendments. With that contribution, I otherwise commend the bill to the house.