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The Hon. IAN GILFILLAN obtained leave and introduced a Bill for an Act to amend the Evidence Act 1929. Read a first time.
The Hon. IAN GILFILLAN: I move: That this Bill be now read a second time. This Bill contains exactly the same provisions as an amendment that I attempted to move earlier this year when we were considering a Government amendment to the Evidence Act. Put simply, the Bill would create a presumption that, when a child is giving evidence, closed circuit-television will be used for that purpose, unless that is contrary to the wishes of the child, would prejudice any party or would be inappropriate because of urgency. Neither would the presumption apply to children who are defendants in the Youth Court. The Attorney-General is on record as saying that being a child witness can be a trauma. The Director of Public Prosecutions says that the criminal justice system often appears insensitive of or unresponsive to children's needs. My amendments to the Evidence Act, proposing a new section 13A, were designed to address just this issue. They were moved on 18 February and defeated on 9 March because I did not get the support of either the Liberal or Labor Parties. The next day, 10 March, I issued a news release on the topic. In that release I explained that both major Parties had voted in Parliament to perpetuate what the Australian Institute of Criminology had described as `child abuse' in courtrooms. Both major Parties voted against the recommendations of the Australian Law Reform Commission, which is to give child witnesses the right to avail themselves of the use of closed-circuit television when giving evidence. I am bringing back this issue because I cannot believe that, given more time to reflect on this issue, both major Parties really are committed to the position they took in this Chamber on 9 March. Now that my amendments have been separated from the Attorney's Bill and brought to the Parliament's attention once again as a separate Bill, I am hoping that calmer dissection of these issues will allow common sense to prevail for the benefit of child witnesses.The reasons for this Bill were outlined in my speech on
11 February, and I refer honourable members to Hansard, pages 647 to 650, or the Democrats' website. The Attorney-General on 18 February responded to my speech by making some points of his own, and I intend to reply to them here. First, as I pointed out on 11 February, the use of closed-circuit television and protective shields is currently an option for courts, but there is no data on how often, if at all, they are used. The Attorney-General replied that the primary objective of the Government is not to collect data but to protect witnesses. That, with respect, is a puerile response. If the present measures are designed to protect children, and no-one is bothering to check whether they are being used, it must be the case that either the Government does not believe that these measures do protect children or that no-one has responsibility for checking whether children have been protected. Which is it to be? Secondly, the Attorney says that one of the primary aims of the Government is to remove age discrimination in relation to child witnesses. He says that children should not be treated differently from adults on the basis of age alone but that each child's ability and competence should be considered individually in the context of the case. That bears some thinking about.We are putting children into a totally unfamiliar and hostile environment where rival lawyers have reputations staked on destroying the evidence and saying that the protection of the child in those circumstances is not paramount. Age discrimination is unlawful when it comes to adults—and rightly so—but age discrimination for children is merely a matter of common sense. That is why we have an age of consent, why there are laws against child labour, and why Family and Youth Services and social workers are sometimes obliged to remove a child from an abusive domestic situation. These are child protection measures. They are, by definition, based on age discrimination. Why retain a Youth Court? If the Attorney's line is that we should remove discrimination on age, why bother to have a separate court specifically for youth?
The Hon. T.G. Roberts interjecting:
The Hon. IAN GILFILLAN: There are some pretty small adults, too, physically. In any case, that is a form of discrimination and I will not be distracted by that interjection. If one were to accept the Attorney's argument that we should not discriminate in a courtroom on the basis of age alone, why limit that principle to the courtroom? Why not consider whether individual children are capable of giving informed consent to sex or to abuse in the home? It is the same principle. Yet the Attorney does not argue that way. In fact, it is a nonsense to say that age discrimination must occur in a bedroom, loungeroom or workplace but cannot occur in a courtroom. Of course it can and should for very similar reasons.
Thirdly, the Attorney-General raised the issue of costs and complexity in administering the scheme. I will not respond to that but will leave it to the Attorney-General to explain to parents and children why closed-circuit TV can be afforded in the courtrooms of other States but not in South Australia. He indicates that they are available for those who ask for it, so what increased cost could possibly be of significance in this issue.
Fourthly, the Attorney on
18 February raised the issue of other vulnerable witnesses and asked, `Why not treat them all the same way?' My response is that the discretion still exists for the court to extend protection to vulnerable witnesses under the current section 13 of the Evidence Act. My Bill merely makes this a presumption for children. Fifthly, the Attorney quite outrageously misrepresented to Parliament on two occasions the effect of my amendments, and I hope he will not make the same mistake in respect of this Bill. On 18 February he stated that the proposed new section 13A `would have the effect of compelling the use of closed-circuit television in every case in which a child is a witness'. He repeated the same misinformation on 9 March. Clearly that is not the case. This Bill merely creates a presumption which can be displaced in circumstances that are clearly defined by subsection (2). It is stated clearly in the Bill that the court must not make an order for the use of closed-circuit TV if it is satisfied that the child desires and is able to give evidence in the courtroom. This is not compelling a court to use closed-circuit TV; rather, it is giving the child a choice which at present it does not have. Sixthly, on 9 March the Attorney-General contrasted the provisions of my earlier amendments, identical to this Bill, with the provisions in other jurisdictions. He noted that in New South Wales and Western Australia the presumption of using closed-circuit television applies only to proceedings for alleged sexual or violent offences. I, too, noted this when I was giving instructions to Parliamentary Counsel in relation to this Bill in the earlier proposed amendments. However, I noted that the recommendation of the Australian Law Reform Commission was to make the use of closed-circuit television a presumption in all proceedings involving children—not merely in the proceedings for violent or sexual offences. Faced with a choice between the explicit recommendation of the Australian Law Reform Commission and the current New South Wales and Western Australian provisions, which the Australian Law Reform Commission endorsed, I opted to pursue the Australian Law Reform Commission's recommendations because I am proposing a presumption, not a compulsion. It seems clear to me that the presumption will be more easily set aside in cases that do not involve sexual or violent offences. However, children in other proceedings who may be vulnerable or who may be intimidated, such as witnesses to a fraud or robbery, can still take advantage of this presumption. Seventhly, in response to a question from me on 26 May, the Attorney said that he had not had any complaints about the way in which defence lawyers in this State approached child witnesses. I do not assume that all the trauma and difficulty associated with children giving evidence arises solely from the questions of defence lawyers. I am told that prosecutors, too, sometimes see it as being in the best interests of their case to get the child to break down and cry in order to create sympathy for the alleged victim.540 It is for this reason, I am told by the President of the Law Society—I repeat that: I am told by the President of the Law Society—that some prosecutors will not make an application to a judge for the use of screens or closed circuit TV. My Bill is neutral in terms of the battle between defence and prosecution. Neither do I believe that we should wait until complaints about cross-examination in this State are as gross as they are reported to be in other States. I refer to the quotes attributed to three defence lawyers which I put on record in this Chamber on
11 February and again on 26 May. But it was the Attorney-General himself who said, in relation to another Bill earlier this year dealing with jurors (and I quote from Hansard): I believe it would be a great pity if Parliament was only willing or able to consider legislation aimed at fixing a problem that has already occurred. I acknowledge that there does not seem to have been a major problem in South Australia with regard to disclosure of jury deliberations. However, I would like to think that we can be pro-active and guard against such activity becoming a problem in this State. I hope that the Attorney-General can take his own advice in respect of the problems that have been identified interstate as besetting child witnesses before they become so acute in this State. So, I am saying to the Attorney-General: let us be pro-active if he does not believe there is a great instance of this abuse currently in South Australia. However, the evidence that has been produced to me from people in the legal profession—and no less a person than the President of the Law Society—is that it currently does exist and it is currently being perpetuated constantly in the courts. My final point is taken from a news release, headed `More Help for Child Witnesses', from the Attorney-General himself. It reveals that the Witness Assistance Service assists about 300 children each year, most of whom are victims of child sexual abuse. One may argue about whether the protections of my Bill are required for other cases, but the reality, according to the Attorney-General's own news release, is that most children who go to court are going as both victims of and witnesses to child sex abuse. The final paragraph of the news release states: It is the policy of the Witness Assistance Service that in cases involving child witnesses or victims applications are made to the trial judge to use screens or closed circuit television for all children or their parents who ask for them. This quote must have sneaked through before the Attorney-General had a chance to read it carefully because, when I pointed it out to him, he was somewhat interested to read it. This may be the policy of the Witness Assistance Service, but it is apparently not the policy of the Government—not if the Attorney-General's comments on this issue are to be believed. The fact is that not all children are informed that they have the right to ask or that screens or closed circuit TV are available for their protection; of those who do ask, not all requests get through from the prosecution to be communicated to the judge; of those that are communicated, not all requests are granted. Therefore, there are three ways in which a child can fail to get this protection. My Bill will address this and offer greater protection to children and their families when they need it during their day in court.The Hon. T.G. ROBERTS secured the adjournment of the debate.