Publication of identity of defendants to certain sexual offences no longer prohibited by Rachna Nagesh
Publication of identity of defendants to certain sexual offences no longer prohibited.
The Criminal Law (Sexual Offences) Act 1978 (Qld) was amended effective 3 October 2023 such that it no longer prohibits the publication of the identity of defendants to certain sexual offences.
Overview of the changes
Prior to the amendments being made, there was a prohibition in Queensland on the identification of an adult defendant charged with certain sexual offences prior to the finalisation of committal proceedings. The sexual offences to which the provision applied were rape, attempt to commit rape, assault with intent to commit rape and sexual assault.
The new amendments to this legislation have removed this prohibition and put in place a process by which defendants can apply to the Magistrates Court for a non-publication order prohibiting the publication.
The application process
There is a prescribed process for this application, including giving three clear business days’ notice of the intention to make the application to both the court and any other eligible person. The court must also notify “each accredited media agency” so that they can appear and be heard on the application.
The procedure regarding making the application has been outlined in a Magistrates Court Practice Direction 4 of 2023.
The court may make a non-publication order where an adult defendant is charged with a prescribed sexual offence if satisfied of one or more of the following grounds:
(i) the order is necessary to prevent prejudice to the proper administration of justice;
(ii) the order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge;
(iii) the order is necessary to protect the safety of any person.
In hearing the application, the court may receive and take into account evidence of any kind it considered credible or trustworthy, and must consider the following:-
(i) the primacy of the principle of open justice;
(ii) the public interest;
(iii) any submissions made or views expressed by or on behalf of the complainant about the application;
(iv) any special vulnerabilities of the complainant or the defendant;
(v) any cultural considerations relating to the complainant or the defendant;
(vi) the potential effect of publication in a rural or remote community;
(vii) the potential to prejudice any future court proceedings;
(viii) the history and context of any relationship between the complainant and the defendant (including, for example, any domestic violence history);
(ix) any other matter the court considers relevant.
Potential consequences
Parliament has made clear that the possibility of reputational damage to a defendant is not in itself sufficient grounds for a non-publication order.
Furthermore, making the application may itself incentivise the media to publish a report revealing the defendant’s identity in relation to the charges. This is because they would have been advised of the application by the court and had the opportunity to be heard on the application in court. This is exacerbated if the court rules that they are not prohibited from publication of the defendant’s identity.
In those circumstances, adult defendants should be extremely cautious in deciding whether to make an application for non-publication and ensure to receive legal advice on the issue. This is especially the case where there has been little to no media attention on a defendant’s charges.
Protection by proxy?
There are other prohibitions in place that may, by proxy, protect a defendant’s identity. For example:
- Child complainants cannot be identified under the Child Protection Act 1999 (Qld). If identification of the defendant could identify the child complainant, then the identification of the defendant is also prohibited.
- Complainants to sexual offences cannot be identified unless a court orders otherwise. If identification of the defendant could identify the complainant and there is no court order permitting publication of the complainant’s identity, then the identification of the defendant is also prohibited.
How ROG can help you
Our team has significant experience in criminal matters of this nature. Contact us on our website or call (07) 3034 0000 for a free case appraisal.
AFS LICENSEE AND CREDIT LICENSEE DISCLOSURE OBLIGATIONS by Rachna Nagesh
Background
Companies that offer financial advisory services must hold an Australian Financial Services licence (“AFS licence”). If they employ financial advisors, they can appoint them as “authorised representatives”. Bodies corporate, partnerships or trustees can also be appointed as authorised representatives.
Companies that offer mortgage broking services must hold a credit licence with the National Credit Code (“credit licence”). If they employ mortgage brokers, they can appoint them as “credit representatives”.
The obligations for authorised representatives of AFS licence and credit licence holders are the same.
When appointing an authorised representative or credit representative, there are requirements for background checks, for the licensee (i.e. company) to ensure the representative is adequately trained, and that there are adequate systems and procedures in place for monitoring and supervising their representatives. Appointments must be made with written consent.
Is there a disclosure obligation?
AFS and credit licensees must report all ‘reportable situations’ to ASIC.[1]
It is automatically considered to be a ‘reportable situation’ if an AFS or credit licensee has committed:[2]
- A dishonesty offence under any law that has a maximum penalty of 3 months’ imprisonment or more, or
- Any offence under any law that has a maximum penalty of 12 months’ imprisonment or more.
Failure to report to ASIC in accordance with the obligations is an offence and can lead to criminal or civil penalties.[3]
Who has the obligation?
This obligation attaches to the licensee itself, not to the authorised representative or credit representative. However:[4]
“[l]icensees must have robust arrangements in place with their authorised representatives and credit representatives… that are effective in identifying, recording and escalating possible breaches by an authorised representative or a credit representative, and ensure appropriate supervision in respect of these arrangements.”
The legislation does not prescribe what these reporting arrangements will be, meaning the authorised representative or credit representative will have to refer to their company’s policy and/or employment contract.
When does the obligation arise?
A report must be lodged with ASIC within 30 calendar days after the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe a reportable situation has arisen.[5]
Knowledge and recklessness are defined in accordance with their definition in the Commonwealth Criminal Code.
What is “commission of an offence”?
This phrase is not defined in either legislation.
However, the Regulatory Guide RG 78 provides an example:
“For example, if the licensee identifies, after complaints have been lodged by clients, that an authorised representative has given advice to clients to dishonestly obtain client funds and use them for personal expenses or other purposes, the licensee must report that breach to ASIC.”
This shows that the obligation arises upon the licensee identifying that client funds had been dishonestly obtained.
Therefore:
- The obligation arises when the authorised representative or credit representative reports the breach (in accordance with their company policy or employment contract) to the licensee.
- At this point, the licensee is required to report the breach within 30 calendar days.
- Of course, if they were aware of the breach earlier, or reckless with respect to whether there were reasonable grounds to believe a breach had occurred, the obligation arises earlier.
Implications of disclosure
Once the authorised representative or credit representative reports the breach, the licensee is required to report it to ASIC within 30 days.
Once ASIC receives the report, they may contact the licensee for further information. They do not take action on all reported matters, and will only contact the licensee company if they consider it necessary to do so.
However, the licensee is bound by ASIC’s reference checking and information sharing protocol. If the authorised representative or credit representative is to change jobs and work as in the same capacity at another AFS or credit licensee (“recruiting licensee”), then their current employer (“referee licensee”) is required to share information with the recruiting licensee about them when recruited.
One such piece of information that the referee licensee is required to share is if they reported a breach to ASIC in respect of the representative, and if yes, to provide details of the breach.
The recruiting licensee is required to ask the authorised representative or credit representative for consent to request a reference, and they are within their rights to deny consent. While they can still be employed by the recruiting licensee, the recruiting licensee is required to be able to demonstrate that they complied with their general conduct obligations in employing the representative. This may mean that they do not employ the representative if they decline consent.
Conclusion
If an AFS or credit representative has been convicted of a dishonesty offence punishable by a maximum of three months’ imprisonment or any offence punishable by a maximum of 12 months’ imprisonment, then they may be required to report this to their employer (i.e. an AFS or credit licensee).
Consequently, the AFS or credit licensee must report this to ASIC, who may investigate it.
Even if ASIC do not investigate the breach, the employer will be required to disclose it to any recruiting AFS or credit licensee if the representative applies for a new job.
How ROG can help
We can provide specialised advice regarding your reporting obligations and any investigations by ASIC.
For assistance, please contact our office at (07) 3034 0000.
[1] Corporations Act 2001 (Cth) s 912DAA (“Corporations Act”) and National Consumer Credit Protection Act 2009 (Cth) s 50B (“National Credit Act”).
[2] Corporations Act 2001 (Cth) s 912D(4)(a) and National Credit Act s 50A(4). See also Corporations Act s 912D(1)(a) and National Credit Act s 50A(1)(a).
[3] Corporations Act s 912DAA and National Credit Act s 50B.
[4] Regulatory Guide RG 78.
[5] Corporations Act s 912DAA(3) and National Credit Act s 50B(4).