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The Sydney Morning Herald

Nonsensical law keeps state in the dark

Author: TIM DICK
Date: 23/04/2011
Words: 1011
Source: SMH
          Publication: Sydney Morning Herald
Section: News Review
Page: 14
On Wednesday evening, a South Australian Labor minister was arrested and charged with two counts of possessing child pornography and two counts of taking steps to access child pornography.

Bad for him, bad for Labor, and a superbly bad political story, the likes of which we used to get in NSW.

The Daily Telegraph in Sydney thought so much of the story it ran it on page five, identifying the alleged fiend as Bernard Finnigan, the Minister for Industrial Relations and Gambling, and, deliciously at the time of his arrest, the state's acting Minister for Police.

The Tele topped the story with an official looking portrait, complete with the Australian flag, a neat side part and an easy smile for the camera, one given without the knowledge it would one day be used to show the face of the 38-year-old referred to in a SA Police media release titled "Man arrested for alleged child exploitation offences".

The release didn't name him, which is standard police practice. But nor did the ABC's AM program, which described him only as a Labor MP, nor the home-town Adelaide Advertiser, despite him being a member of the state's upper house who joined cabinet in February as part of the long-serving Rann government's renewal. The people who were most interested in the fate of a South Australian politician - those in South Australia - were not told who the accused person was.

By noon on Thursday, while The Advertiser was reporting on one part of its website, AdelaideNow, the MP-charged-with-child-porn story, on a different part of the same site, it was reporting that Finnigan had resigned from cabinet. No reason was offered, other than a passing reference to the fact that it came after a bad poll for Labor. A statement from the Premier, Mike Rann, made no mention of the reason why one of his cabinet ministers had abruptly quit.

With considerable understatement, the Opposition Leader, Isobel Redmond, said: "There are some questions, I think, that still need to be answered about that resignation."

The porn story and the resignation story were not run together because that would give the game away.

The South Australian media is not allowed to report what it knows to be true: that Finnigan quit after he was charged with breaking the state's laws against child exploitation, despite proclaiming in his maiden speech his commitment to God, justice and ethics.

Why? Because section 71A of the SA Evidence Act says so. It bans anyone from publishing anything which reveals the identity of person charged - or about to be charged - with a sexual offence before he is committed for trial or enters a plea. Maximum penalty: $10,000 for an individual, $120,000 for a company.

It muzzles Rann, it muzzles The Advertiser and it muzzles any publication online. You can read this in the Herald's printed edition outside South Australia, but you won't find it online, all thanks to this stupid rule hiding the identity of the acting Police Minister.

I expect it would muzzle the New York Times website too, should the twin unlikely events of The New York Times considering South Australian politics to be of interest, and that someone in South Australia should be reading The New York Times, actually occur.

The Evidence Act deems a sexual offence to include rape, indecent assault and any offence involving exploitation of a child as an object of "prurient interest" - which includes child pornography. The usual primary reason to ban the media, and anyone else, identifying perpetrators of sexual offences is because perpetrators are often related to their victims, so identifying the offender can easily lead people to work out who the victim is. Justice, rightly, wants to protect victims.

In most Australian jurisdictions, similar bans focus on publishing material that leads to the identification of the complainant in sexual crimes - but in South Australia and Queensland, it explicitly works to protect accused offenders too.

Child pornography is not a victimless crime, but there is not usually any complainant but police. The link between naming an alleged offender and revealing the victim is not usually present as it is in, say, incest. And if the justification is not there, nor should be the restriction on reporting the identity of the person charged.

In this case, the law is more than an ass; it is interfering with a state's political functioning, preventing voters from knowing what is alleged by police against a cabinet minister. It diminishes public debate about public matters to a silly round of whispering. Rules set for one media reality are mocked by the new one.

Unless Finnigan gives his consent to be named, South Australian politics will be suspended in this unreality until such time as he is committed for trial or enters a plea.

Legislative overreach is not confined to Adelaide. In NSW, the media cannot report the identity of a murdered child once murder proceedings begin, unless it wins the consent of the next of kin - usually parents - and then only if the parents have consulted one other or other next of kin, plus any siblings, and considered the impact such consent might have on those siblings.

That cumbersome requirement is particularly difficult if the parent is also the accused; they can't then give consent, but who can? Someone who was caring for the child before death, or the court. Easy.

That is the law of this state, despite anyone being completely free to report the identity of a murdered child as much as they like before charges are laid - front page, back page, rolling continuous coverage. But the minute charges are laid, publication is banned. The law assumes the community will instantly forget the child's name, and the internet will too.

So this week in South Australia, Bernard Finnigan went duly unnamed by mainstream media as the man charged over child porn. But he was identified as such repeatedly on Twitter, in updates like this: "So SA Labor has a pervert in it's ranks. In other news, Bernard Finnigan MP resigns."

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