South Australia’s antiquated sex ID law

Media coverage of the arrest of a prominent South Australian politician on sex charges and its political fallout on April 22 made a mockery of the state’s outdated suppression of the names of people accused of sexual crimes.

It also highlighted the difficulties faced by the mainstream media attempting to comply with the law, while their online competitors in social media and the blogosphere named and shamed the accused with abandon.

The state’s newspapers performed layout and design gymnastics as they attempted to tell their readers very different stories on different pages – one about the arrest of an anonymous politician on child pornography charges and another on the important matter of personnel changes in the South Australian parliament.

On May 3, South Australian Premier Mike Rann conceded the restrictions might be a little antiquated when he announced an independent review of the 35-year-old law banning the identification of the accused in major sex crimes – or even coverage of preliminary proceedings – until after they have been committed for trial. (Read more here).

South Australian and Queensland law requires the identity of the accused person to be kept secret until later in the criminal process. In South Australia, the identity restriction extends to a ban on any coverage of the preliminary proceedings of a major sexual offence until the accused person has been committed for trial or sentence (Evidence Act 1929, s. 71A). In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7).

The laws differ from those in other Australian states and territories where only the identity of the victim is suppressed. There, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.

These restrictions did not even work very well in earlier times. Queensland media had to suppress the name of former Opposition Leader Keith Wright when he faced sex charges in 1993, while competing outlets in other states were able to name him. It meant residents in the NSW border town of Tweed Heads could read about Wright and see his photo while just a minute’s drive away in Coolangatta, Queenslanders could only read about ‘a politician’.

Today’s communications defy state borders and the postings of bloggers and social media users make a mockery of state-based laws to the disadvantage of traditional media. The result is that the identity of the arrested South Australian politician has become widely circulated on the Internet, but newspapers and broadcast media in that state have been forced to comply with an outdated law.

Journalists face a A$10,000 fine if they identify the person and their companies can be fined up to $120,000 – the same penalties they would face if they identified the victim.

When the accused person is a politician there is the added important public interest element in citizens’ rights to be fully informed on political matters. This must surely outweigh other considerations, particularly when most other jurisdictions allow the identification of accused persons in such circumstances.

As the South Australian example demonstrates, it is just a bad law when almost everyone knows the identity of this accused politician but the mainstream media is gagged from stating it. That is unhealthy for both justice and democracy.

Now that South Australia is making the first moves towards reform, Queensland legislators should follow suit, so that state does not become the suppression laggard of Australian jurisdictions when the next Keith Wright comes along.

Mark Pearson is Professor of Journalism at Bond University and co-author of The Journalist’s Guide to Media Law (Allen & Unwin, 2011). He tweets from @journlaw and blogs from journlaw.com

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