30th July 1999, by David Solomon
Ignorance of the law is no excuse - as publisher Scott Balson may discover if prosecuting authorities decide to charge him for publishing the name of a man currently facing committal proceedings on child-sex charges.
Nor should it be an excuse for politician who try to make political capital out of so-called inconsistencies in the administration of the law banning the naming of defendants to such charges.
The law is relatively simple and it should be well known to anyone who is seriously involved in publishing and broadcasting, as well as to anyone who speaks out as the spokesman on justice issues for the Opposition.
It is set out in the Criminal Law (Sexual Offences) Act of 1978.
That law prohibits the naming of "a defendant charged with a prescribed sexual offence... before the defendant is committed for trial or sentence upon that charge". Also banned is the identification in any way of a complainant or witness in those proceedings.
A person who commits an offence against the law is liable to a penalty of up to Au$500 or six months jail, or both. If the offence is committed by a company (for example the publisher of a newspaper or a broadcaster) the penalty is Au$2,000.
Whether Balson faces any charges will depend mainly on whether there is evidence that he was responsible for publishing the man's name on his web site.
There is another key section of the Act which relates to allegations that this newspaper and Premier Peter Beattie unlawfully published the man's name, and that different legal or prosecutorial standards were being applied to them.
Section 3 of the Act defines various terms including defendants. It says, "Defendant means a person charged with having committed a sexual offence." The definition means that the provisions of the Act apply only once a person has been charged.
It is an explanation that should have occurred to Opposition spokesman Lawrence Springborg when yesterday morning he was interviewed on Carolyn Tucker's program on ABC Radio.
Springborg used the opportunity to attack the Government for being inconsistent, saying the same standards should apply to the Premier as were now going to be applied to Balson.
The Attorney-General, he argued, should be even-handed. There should not be one law for this Web site and another law from the Premier and others who had publicised the man's name more broadly. There was a legitimate concern, he suggested, that the law did not appera to be being applied equally.
"I would be very interested to know," he said, "what the difference is."
Tucker then suggested that the difference might be that charges had not been laid when the Premier and others revealed the man's name.
Springborg, "I don't remember."
The question provided the true explanation why the man's name was able to be mentioned earlier but cannot legally be mentioned now.
This particular law did not apply before the man was charged. Other laws did, including the law of defamation, for example.
A person who says another is about to be charged with a criminal offence risks being sued for defamation if they are wrong, and perhaps even if they are right.
The decision to make such an accusation is not taken lightly. In this case the publication prompted the Premier to make various comments but more importantly, it helped persuade other complainants to come forward.
What happened before the man was charged is irrelevant, however, to the present legal situation - and Springborg should have known the difference.
So, too, should Balson. As a publisher he has a responsibility to obey the law. It may be the case that his publication only attracts a hew hundred hits a day and that therefore he did not do too much damage.
Nevertheless, people who use the Net to publicise their views are as subject to the law as mainstream publishers are.
The law applies to people who provide information through electronic means and people who gossip in pubs and clubs as much as it does to publishers of newspapers and broadcasters.
There may be legitimate complaint about some aspects of the criminal law that prevents, for example, the publication of the name of a sex offender if that publication would result in the name of the person's victim being made public.
However, the law about non-publication of the names of complainants, witnesses and people accused of sex offences has now been on the statute books for more than twenty years and no government in that time has seen fit to change it significantly.
And there is no legitimate reason to believe that it has not been administered in an even handed way by the Government's law officers throughout that time.