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Jul 13, 2011

Suppression-happy SA leaves naming of charged MP to social media

Can you guess the name of the South Australian MP who can’t be named on alleged child pornography charges?


Can you guess the name of the South Australian MP who can’t be named on alleged child pornography charges? Everyone else is having a go, so you’ll be in good company if you join in.

If you live in Adelaide the odds are you already know who it is, despite the fact that the state’s Evidence Act forbids the media telling you. If you live outside South Australia there’s nothing the law can do to stop you finding out.

If you use social media (and who doesn’t) you might already know because the man’s identity is all over the net — particularly in South Australia.

Almost anyone with a passing interest in the matter knows exactly who it is. They know he is facing one count of allegedly possessing child pornography, another of allegedly aggravated possession and two others of allegedly attempting to access it.

So why is everyone persisting with this charade of trying to keep the man’s identity a secret?

The answer, in part, is that South Australia is suppression happy. Along with Queensland, it has special provisions that protect alleged sexual offenders until the accused person has been committed to trial. In the other states alleged offenders can be named, so long as naming them doesn’t identify the victim.

There are some good reasons for this. The law recognises that being wrongly accused of a s-xual offence inevitably carries a terrible smear. So reporting the preliminary hearings and discussing the evidence in the case is severely restricted.

Of course the courts should be allowed to do their job without undue interference by the media but there is something strange about a system that is manifestly failing to protect anyone. Instead, it seems the suppression of names has a perverse effect by promoting widespread speculation about the alleged culprit’s identity and by fuelling huge amounts of online chatter.

For three months this has been going on, spurring the state Attorney-General, John Rau, on the weekend to launch an inquiry into the South Australia law.

The inquiry specifically looking into the controversial section 71A of the Evidence Act, is a chance for South Australia to leapfrog over the other states. It could move from its current restrictive approach to one that deals with all the challenges posed by online and social media. This would be a good thing because these new forms of media are making a mockery of contempt of court laws around the world. Just look at the recent UK case in which 75,000 people using Twitter breached privacy injunctions that banned revealing details about an alleged affair involving footballer Ryan Giggs.

I suspect the public will have a bit to say at the SA inquiry because it is pretty savvy about this stuff. For example, the people of Adelaide guessed long ago that anyone named in news reports about this case could not — by definition — be the alleged offender. It often comes down to a simple act of elimination to get the full picture.

The public also knows what’s going on when stuff happens in the parliament that involves the person at the heart of the allegations. Many see straight through the implausible explanations in news reports and understand the stories are crafted to provide a rationale for events without revealing the nature of the charges the man is facing. I’d like to be more specific but doing so might allow someone to join the dots and discover the identity for themselves. If reporters even tend to identify the alleged offender they could face fines of $10,000 for individuals and $120,000 for publishers.

But I fear the inquiry, to be conducted by former judge Brian Martin QC, may not be so forward thinking. After all, this is conservative South Australia we’re talking about — the only state where judges hear defamation matters without juries, leading to odd rulings such as the one last week that ended in an $80,000 fine for comedian Mick Molloy for making a ridiculous joke.

So perhaps it is not surprising that at least one Adelaide lawyer is using the inquiry to lobby for even tougher contempt-of-court laws.  Michael Woods, told Des Ryan of Adelaide’s InDaily yesterday that the identities of all people accused of any criminal offence should be suppressed for the duration of the case, not just until the point of committal but until he or she is actually convicted. Woods argued that “if someone is acquitted they are entitled to be considered innocent”. Strangely, in the same report he acknowledged that the current suppression of the MP’s identity is “pathetic and pointless with our modern media”. But nevertheless, he wants to see those restrictions extended to everyone. Another problem with this argument is that old maxim at the heart of the law — the one about the importance of justice being seen to be done.

It’s good that South Australia recognises that the current law is not serving anyone’s interests. The question is what it will do to fix it.


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