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Thursday, 30 June 1994
Page: 2490

Senator ELLISON (4.55 p.m.) —Firstly, I endorse the remarks made by Senator Spindler expressing horror at the abuse of young children overseas by Australian tourists. Everyone in the Senate and, indeed, across the community would join in any expression of horror at such behaviour. Secondly, I agree wholeheartedly with him that any tour operator or, indeed, any person in Australia who encourages such activity should face the full sanction of the law.

  However, as outlined by Senator Vanstone, the problem is the efficacy of this bill. Our criminal justice system follows the golden thread of justice—that a person is innocent until proven guilty, and proven guilty beyond a reasonable doubt. No amount of horror, no amount of murders, no amount of assaults, no amount of degradation of the individual can justify any derogation from that golden thread of justice—and I believe that this bill is doing just that.

  While the bill has some very good components, it falls down in parts. As Senator Vanstone said, the government is rushing headlong into legislation without thinking about the ramifications of what it is constructing in this bill. I would like to refer to some comments made by witnesses who appeared before the House of Representatives Standing Committee on Legal and Constitution Affairs. Mr Sides QC stated:

Child sex tourism exploits children and it exploits poverty, and it is desirable that this country should play a part in bringing it to an end.

There is no doubt about that; no-one takes issue with that. However, Mr Sides went on to say:

Any legislation should be workable and it should be practical. It is no use passing legislation that is unworkable. In the rush to end this most hideous trade we must not lose sight of the fundamental principles that underpin our democratic institutions; one of those is the right of the accused to a fair trial . . . The right of the accused to receive a fair trial is paramount. If that right is undermined we compromise our democratic institutions . . . It is my view that there are significant and powerful procedures that are not available to accused persons or, for that matter, the prosecution, in this legislative scheme.

That strikes at the very heart of this bill. This bill has a provision for video evidence. In most states there is now provision for victims of sexual assault and for children to give evidence by video. But the provision of that evidence is under Australian law and under supervised conditions.

  It is not normal for other witnesses to give evidence by video. With this bill clause 50EA and clause 50EC provide for evidence to be given by video. I ask honourable senators to consider this situation: a person goes to Thailand, goes to a bar, engages in sexual relations with someone who is under-age, charges are laid, and the person charged in Australia wants someone who was in the bar at the time of the alleged offence to give evidence. The problem is that the witness is in a bar in Bangkok. That witness either comes to Australia willingly—no doubt at the expense of the person charged—or gives evidence by video.

  The problem is that the person giving evidence by video is not in the same place as any other witness giving evidence in the courtroom. If evidence is given by video for the prosecution, the defence counsel or the accused person cannot test that evidence in the flesh—they have to rely on video evidence. Video evidence should only be used in the most extreme cases. Video evidence has all the hallmarks of a perversion of justice because the witness cannot be tested face to face. It is by looking at the demeanour of witnesses, the way witnesses answer a question, that juries ascertain the facts.

  That is a time-honoured way that this country and other countries have run in the administration of criminal justice, so that the person who gives evidence can be seen face-to-face by the jury and, if there is any determination by a magistrate—which is not covered in this bill—then the magistrate draws that conclusion. One will hear many times a judge saying to a jury, `You are men and women of the world. In arriving at the conclusion of facts you can assess the witnesses as you have assessed people in your daily transactions. You can size them up as to whether they were telling the truth.' Any video involvement detracts from that.

  The other thing is the question of mistaken belief as to age. Those states that have the criminal code known as the Griffiths code have what is known as an honest and reasonable but mistaken belief as a defence. That is, if one believes honestly and reasonably in a state of things but one is nonetheless mistaken, then in those situations the law says that one can raise that as a defence, that is, that one's mistaken belief as to things is accepted. So the person concerned has no onus of proof. What happens is that that defence is raised during the course of the trial and then it is up to the judge to charge the jury as to that defence.

  Never ever must the onus of proof shift to an accused person. It does not matter how horrendous the crime is; it does not matter how prevalent a crime is, we must never ever bow to that transgression of justice that the accused has to prove anything. Time and time again we tell a jury, `Ladies and gentlemen of the jury, the accused does not have to prove anything. The accused person does not even have to go into the dock.' Those are time-honoured traditions of justice and they must never be transgressed or else, if they are, this country can count itself for naught.

  I say to the Senate that the abuse of children overseas is a most horrendous practice; but we have real practical difficulties which must be addressed and which the government, in its undue haste, has failed to address. I tell the Senate solemnly that we will be back here in a year's time after the High Court has dealt with its first appeal throwing this out because this has not been crafted, it has not been drafted and put together as well as it might have been. There has not been the aforethought that such a serious piece of legislation requires.

  We are, after all, trying to govern the actions of people in a sovereign state, in a state where our law has no application. I believe that, as much as a deterrent factor is needed, we must ensure that we do not abrogate our principles of justice in doing so. Remember the instance I mentioned of the person who is charged and who comes back to Australia. What of the cost to that person?

  Legal aid funds are well burdened with other matters. It is known that throughout the country legal aid is stretched very thinly. I say to the Senate that, in such a case, one cannot have the average individual who might be charged wrongly, remembering that he or she is innocent until proven guilty, although the government might change that pretty soon, facing the cost of bringing a witness from a foreign country in order to bolster the defence—in other words, the accused person has to prove himself or herself innocent. That, I think, is a disgraceful state of affairs.

  It is a disgrace that any mention of a video should be used, other than for evidence given by a child or the victim of a sexual offence. That provision was grudgingly brought in throughout this country to save trauma, to save the overpowering of some victims of sexual offences by the accused in a courtroom situation. But it was only for those reasons; it is not there just to make things easier for the prosecution. It is not there just to make bureaucracy tick a little easier.

  By bringing in that video link, I tell the government that it is attacking the integrity of the trial. It is attacking the fundamental ability of a properly directed jury to assess the veracity of evidence given by a witness. I believe the evil that we create by cutting across the principles of justice will be greater than the evil that we are trying to cut out.

  We can only effectively deal with this horrendous problem by placing in our statutes proper legislation, legislation which will work. We must remember Mr Sides QC who said, `It's no use bringing in legislation which won't work.' And, at the end of the day, I tell the Senate this will not work; it will end up in the High Court and we will be back here debating this very issue.