Standing Committee on Law and Justice

Debate resumed from 4 June 2008.

The Hon. CHRISTINE ROBERTSON [2.31 p.m.]: When I last contributed to debate on this report I was stating that an important contribution to the inquiry was made by representatives from victim support groups, including the Homicide Victims Support Group, Victims of Crime Assistance League and the Homicide Support After Murder Group, as well as representatives from the Australian Press Council and media organisations. I will deal now in more detail with issues that were addressed during the inquiry, for example, the rationale for treating children differently to adults. Children are treated differently to adults within the criminal justice system in recognition of the fact that they are less developed emotionally and cognitively act more impulsively, and are more vulnerable to the negative impact of stigmatisation.

The committee heard evidence that it is the relative underdevelopment of the frontal lobes that continue developing into the mid-twenties that largely accounts for the reduced capacity to inhibit impulses, plan for the future, foresee the consequences of actions and delay gratification that we observe in children. The prohibition in section 11 of the Children (Criminal Proceedings) Act keeps legislation in New South Wales in alignment with international instruments that Australia has endorsed, namely, several United Nations declarations, covenants, guidelines and rules relating to children. These instruments provide principles for the administration of juvenile justice and, in particular, advocate for the privacy of children within the criminal justice system. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985, also known as the Beijing Rules, state the following principles:

Rule 8.1: The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

Rule 8.2: In principle, no information that may lead to the identification of a juvenile offender shall be published.

Before the commencement of the inquiry, during the inquiry and after its conclusion, committee members heard some interesting contributions and observed self-interested distortions by certain groups in the media relating to the law and to the committee's recommendations. It is important to note that there were some badly researched contributions from certain sections of the media across the board. All Australian States and Territories other than the Northern Territory have a similar, if less detailed, prohibition to that contained in section 11 of the Children (Criminal Proceedings) Act, with the presumption being against publicly naming juveniles involved in criminal proceedings.

The Northern Territory is unique in Australia in legislating a presumption in favour of naming juveniles involved in criminal proceedings. However, a 2006 Northern Territory Court of Criminal Appeal judgment supported a judge's decision to prohibit the public naming of a juvenile offender on the grounds that it would impact negatively on his or her psychological wellbeing and rehabilitation prospects. That means that Northern Territory judges now have a precedent in support of not naming offenders in cases where doing so could be considered harmful to that offender. The impact of naming juvenile offenders and the weight of evidence presented to the committee clearly indicated that publicly naming juvenile offenders would be likely to have a negative impact on their rehabilitation and increase, rather than decrease, the likelihood of their reoffending.

Naming juvenile offenders is likely to lead to stigmatisation in the form of prejudice from other people, reducing the offenders' prospects of gaining employment and accommodation, pursuing educational opportunities and forming relationships with prosocial peers. It can lead to negative self-identity by strengthening a juvenile's bonds with criminal subcultures and his or her image of himself or herself as a criminal and a deviant. There was evidence to suggest that some juvenile offenders or would-be offenders would see being publicly named as a badge of honour and something to which they could aspire. If anything, the effect of stigmatisation would be greater in smaller communities, such as Aboriginal communities, and would further marginalise already marginalised individuals.

It has been argued that publicly naming juvenile offenders would act as a deterrent to them and to any would-be offenders. However, for those juveniles seeking notoriety, the promise of public naming would have the opposite effect. Furthermore, the impulsivity and lack of planning that are common characteristics of juvenile offending would suggest that criminal justice outcomes do not have a significant deterrent effect on juveniles. The committee agrees with the general principle underlying the treatment of juveniles in the criminal justice system—that rehabilitation should always be emphasised over deterrence. Some inquiry participants argued that publicly naming juvenile offenders would encourage them to take responsibility for their actions and, therefore, impact positively on their rehabilitation.

The committee agrees that responsibility and accountability are important elements of rehabilitation but it believes that those ends could be achieved without public naming. The evidence suggests that public naming and shaming would have a negative impact on rehabilitation. The committee also acknowledges that offenders should be confronted with the harm that they have caused and that it is right for them to feel shame. However, that shame should be constructive and used in a way that promotes rehabilitation and reintegration into the community. Youth justice conferencing is an existing Department of Juvenile Justice program that utilises re-integrative shaming in a confidential setting to produce positive outcomes for both offenders and victims.

I will refer later to youth justice conferencing and how it relates to victims. I refer next to the impact of naming on victims. In regard to victims of crime it is important to note that the prohibition in section 11 of the Children (Criminal Proceedings) Act covers various victim-offender combinations—juvenile victim-juvenile offender, juvenile victim-adult offender, and adult victim-juvenile offender. The policy objective of protecting juvenile victims from the negative effect of unwanted publicity was unchallenged, and the committee reaffirms that. However, some inquiry participants argued that naming juvenile offenders could assist the victim's recovery or, in the case of a deceased victim, assist in the recovery of the victim's family.

In addition to directly prohibiting the public naming of juvenile offenders, section 11 prohibits the naming of victims if such naming could lead to the identification of a juvenile offender, and the naming of an offender if such naming could lead to the identification of a juvenile victim. The committee heard evidence from the parents of murder victims about the devastating effect that the murder of their child had had on them. That was compounded in some cases by the negative experience that they had had in the criminal justice system due, in part, to the protection in the form of anonymity that was afforded to the juvenile offender.

The committee acknowledges that in some cases naming juvenile offenders would give victims or their families a sense of vindication. The committee also acknowledges the importance of the victim's recovery. However, the victim's recovery can be assisted without publicly naming juvenile offenders. As I mentioned earlier, youth justice conferencing is a confidential process that has been producing positive outcomes for victims. Victims have the opportunity to describe the effect that a crime has had on them and to have some say in the outcome for the offender. This gives victims a greater sense of empowerment in the justice process and satisfaction with the outcome, whilst protecting the anonymity of both juvenile victims and offenders.

The committee heard evidence from media representatives that the prohibition on naming juveniles involved in criminal proceedings impacted on the media's ability to bring matters in the public interest to the attention of the community. It was argued that removing names from a news story reduces that story's impact and leads to it having less prominence in media publications. However, the committee notes the distinction between what is "of public interest" and what is "in the public interest". Removing a child's name from a news story does not affect the issues in that story that are in the public interest. The committee notes also that media editors and producers can give a story prominence if they consider it is in the public interest, whether or not it contains the names of the juveniles involved.

Media representatives argued also that the prohibition was contrary to the important principle of transparency in justice, and impacted on their ability to keep criminal justice processes before the public eye. However, the committee believes there is sufficient public information to facilitate this important scrutinising function in regard to a particular case or criminal justice processes in general without the inclusion of the names of juveniles involved. The media are presented with particular obstacles when they report on matters involving the death of a child as a result of a criminal act. The prohibition in section 11 relating to deceased children is intended to protect any child siblings of the deceased. However, permission to name the deceased child can be given by a senior available next of kin.

This can lead to a situation where multiple media outlets rush to obtain the permission of the senior available next of kin and cause unwanted stress to the family at a time when they may wish to be left alone. However, the committee gives weight to the policy objective behind this aspect of the prohibition—that is, to empower the family of the deceased to decide if the deceased's name is published. It was argued that the immediate circle of friends of a deceased child's siblings would be aware of the situation in any case and that any prohibition on the media publishing the name would have no effect on the siblings. However, there is a difference between the family's immediate circle being aware of the death of a child and the general public being made aware of it. While knowledge of the deceased's identity is confined to the immediate family circle, families retain the option of removing the surviving siblings from that immediate circle to an area where the identity of the deceased is not known. Allowing the media to publish the name of the deceased would impact seriously on the family's ability to take this action.

Currently, a juvenile involved in criminal proceedings outside New South Wales can be named in New South Wales publications. Similarly, a juvenile involved in criminal proceedings in New South Wales can be named in publications in other Australian States and Territories. This means that the policy objectives of protecting juveniles from the stigma of association with a crime are effective only if the juvenile remains in the same State. If a juvenile were to move to or visit another State where publication of his or her name had been allowed, the juvenile might be subject to the very stigma the prohibition is intended to prevent. Therefore, the committee recommends that the New South Wales Attorney General seek cooperation from Attorneys General in other States and Territories in implementing a consistent prohibition on publishing the names of juveniles involved in criminal proceedings and removing the anomaly I have described. Of course, this anomaly is compounded by the availability of Internet search engines and information technology.

The current prohibition takes effect when criminal proceedings commence—that is, when charges are laid or a court attendance notice is issued. This means that during the period of a police investigation preceding the commencement of criminal proceedings, children who are the subject of that investigation can be named. A child publicly named in relation to a police investigation is potentially exposed to the same stigma that arises from being named in relation to criminal proceedings. Therefore, the argument in favour of extending the prohibition to cover children who are reasonably likely to become involved in criminal proceedings is the same as that behind the current prohibition. Impetus is added to this argument by the fact that a child who is the subject of a police investigation subsequently might not be charged with any offence or be involved in criminal proceedings. Yet if they have been publicly named, the damage may already have been done.

If media reports have been using the names of children involved in a matter under police investigation, the sudden removal of those names once criminal proceedings commence will create discontinuity in the news story. Therefore, the committee's recommendation that the prohibition be extended to cover children reasonably likely to be involved in criminal proceedings protects children prior to the actual commencement of criminal proceedings and the source of discontinuity in news stories is removed. Importantly, the committee recommended that any such extension of the prohibition be worded so as to not limit the powers of members of the New South Wales Police Force involved in legitimate law enforcement and investigative activities, including the use of internal communication channels. I look forward to other members' contributions to this debate. [Time expired.]

The Hon. JOHN AJAKA [2.43 p.m.]: I have pleasure in speaking on the thirty-fifth report of the Standing Committee on Law and Justice concerning the prohibition on the publication of the names of children involved in criminal proceedings. I thank the chair of the committee, the Hon. Christine Robertson, for the efficient and thorough manner in which she conducted the hearings. I also express my gratitude to the secretariat staff for their truly professional and efficient assistance in this matter. My contribution to this take-note debate principally focuses on the impetus for the inquiry and the rationale behind the committee's recommendations. Section 11 of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the names of children involved in criminal proceedings so as to reduce the stigma of their being associated with a crime and to assist in their recovery and rehabilitation.

The naming of children involved in criminal proceedings is of significant importance and contention amongst not only legal practitioners and criminal justice agencies, but also the public. The primary issues for consideration by the committee were, first, the validity of the public policy upon which section 11 rests; second, the effectiveness of section 11 in achieving the objects of the Act; and third, the merits or detriment of extending the coverage of the prohibition. At the heart of the inquiry lay two parallel tensions: the tension between the principle of transparency in justice and the protection of children from the stigma associated with criminal offences; and the tension between the legitimate use of profiling instruments by law enforcement agencies and the protection of juveniles from the sensationalised representations of youth crime based on the age, area or ethnic origin of particular groups.

On the first issue, it has been argued that the ambit of the prohibition contained in section 11 is too broad. Section 11 covers children involved in criminal proceedings—that is, defendants, offenders, victims who were children at the time the offence was committed, siblings of victims and witnesses. Some people argued that the prohibition on the publication of the names of such persons is contrary to the public interest, particularly relating to transparency of criminal justice proceedings, formal notions of accountability, the wishes of victims to make the public aware of offenders' actions and information for prospective employers. However, adequate safeguards exist to protect transparency and to ensure accountability in the most severe cases. For instance, section 11 (4B) states:

A court that sentences a person on conviction for a serious children’s indictable offence may, by order made at the time of sentencing, authorise the publication or broadcasting of the name of the person (whether or not the person consents or concurs).

Section 11 (4C) states:

A court is not to make an order referred to in subsection (4B) unless it is satisfied:

(a) that the making of such an order is in the interests of justice, and

(b) that the prejudice to the person arising from the publication or broadcasting of the person’s name in accordance with such an order does not outweigh those interests.

On the second issue of stigmatisation of juvenile offenders, several parties that were consulted throughout the hearings raised the sensationalised representation of youth crime within particular ethnic groups. Mr Brett Collins, coordinator of the advocacy group Justice Action, gave evidence that in his experience family members and entire communities can be demonised by publicity surrounding an incident of juvenile crime. Mr Collins expressed particular concern about labelling the ethnic origin of juvenile offenders. He said Justice Action's position is that such labelling "lays a smear on the whole of that particular ethnic community and we are totally against it." I respectfully ask the Attorney General to give due regard to those comments when considering the implementation of the committee's recommendations. I further suggest that the Attorney General encourage his colleague the Minister for Police to pay due regard to the recommendations and suppress his inclination to denounce all who raise the issue of ethnic descriptors or the use of ethnic-named police squads, such as the Middle East Organised Crime Squad.

The committee report sets out eight recommendations. I refer now to an overview of some of the notable recommendations. Stakeholders consulted throughout the inquiry identified a need to provide clear and accessible mechanisms for reporting and investigating breaches of section 11. This formed the primary rationale for recommendations 2 and 3. Recommendation 2 calls on the New South Wales Police Force to identify an existing office, such as the Office of the General Counsel, to investigate all complaints relating to breaches of section 11 and to forward a brief to the Office of the Director of Public Prosecutions.

Recommendation 3 states that the New South Wales Police Force ensure that its staff and staff in key organisations that are likely to become aware of breaches of section 11 are informed of the responsibilities of the office identified as the recipient of all complaints relating to breaches of section 11. At present, breaches of section 11 are brought to the attention of the Office of the Director of Public Prosecutions through a variety of channels, including prosecutors, defence representatives, police officers, judicial officers and guardians or other people associated with a juvenile who has been named.

During the inquiry it was suggested that the avenues of complaint in regard to breaches of section 11 were not clear or widely known, and consequently that the provisions of section 11 were not being enforced effectively. Mr Andrew Haesler, SC, deputy senior public defender with the New South Wales Public Defender's Office, contended that the problem could be attributed in part to the fact that there was more than one body that complainants might reasonably approach, such as the New South Wales Attorney General's Department, the Office of the Director of Public Prosecutions, and the New South Wales Police Force. The question as to which body would be positioned most appropriately to receive complaints regarding breaches of section 11 was met with various suggestions, all of which presented their own difficulties. For instance, a potential conflict of interest was identified in situations where a police officer in charge of a matter in which the accused is a juvenile is approached by or on behalf of that juvenile with a complaint that the juvenile's name has been published.

Recommendation 4 calls on the New South Wales Government to amend section 11 to extend the prohibition on the naming of juveniles involved in criminal proceedings to cover the period prior to charges being laid and to include juveniles who are reasonably likely to become involved in criminal proceedings. The rationale behind extending the prohibition in section 11 to cover the period prior to charging is threefold. First, it will reduce the stigma associated with a juvenile's involvement in criminal proceedings; second, it will account for situations when a juvenile who is the subject of an investigation and/or who has been arrested may not subsequently be charged with any offence; and, third, the principles and policy objectives underpinning the current prohibition will apply equally to the entire period prior to charging, including the period of investigation prior to arrest. Basically, this will hopefully resolve the inadequacy of closing the gate after the horse has bolted.

For these reasons it was also recommended that the prohibition be extended to cover children with a reasonable likelihood of becoming involved in criminal proceedings. The concept of "reasonable likelihood" is readily understood and capable of being applied when determining whether the prohibition in section 11 applies. This recommended extension therefore addresses concerns regarding the difficulty in determining at which point criminal investigations begin for the purposes of the legislation. Recommendation 6 further proposes that the New South Wales Government amend section 11 to include the requirement that 16- to 18-year-olds involved in criminal proceedings who wish to give permission for their name to be published can give that permission only in the presence of an adult, other than a member of the police force, who is present with the consent of the child, or an Australian legal practitioner of the child's choosing.

The Children (Criminal Proceedings) Act 1987 currently allows juveniles aged between 16 years and 18 years who are involved in criminal proceedings to give permission for the publication of their names without requiring the consent of the court. However, in addition to the concurrence of the child, the consent of the court is also required to allow the publication of the child's name when that child is under the age of 16 years. Recommendation 6 is based on several significant considerations. The first is the issue of the differential application of the prohibition contained in section 11 on the basis of age. In New South Wales those under the age of 18 years are not considered to have reached the age of adult responsibility in relation to criminal offending and are thus afforded differential treatment by the criminal justice system. The second point is the validity of the current presumption against naming children involved in criminal proceedings regardless of the offence.

The sentencing judge is best placed to make a decision with regard to allowing the naming of children involved in criminal proceedings, irrespective of the severity or nature of the offence. The intention of section 11 is clearly that there be a presumption against the naming of children involved in criminal proceedings. Therefore, this presumption could not be reversed without creating a conflict with the objects of the section. In relation to juveniles convicted of serious children's indictable offences, the discretion to allow an exemption to the prohibition should remain with the sentencing court at the time of sentencing. Having given a broad overview of some of its notable recommendations, I commend the report and the recommendations to the House.

The Hon. AMANDA FAZIO [2.53 p.m.]: I am pleased to commend to the House the report of the Standing Committee on Law and Justice entitled "The Prohibition on the Publication of Names of Children Involved in Criminal Proceedings". The report states:

The prohibition is a departure from the general principle of transparency in justice—that criminal proceedings are subject to the check of being carried out in the public eye. An exception to this principle is made in the case of naming children involved in criminal proceedings in recognition of their vulnerability to the negative impact that may flow from their names being published.

During the inquiry we heard evidence from a range of witnesses and received numerous submissions. The job of the committee was to balance the differing views put to us and to take into consideration some of the international conventions relating to the treatment of juvenile offenders.

These international conventions include: the United Nations Declaration on the Rights of the Child 1959, the United Nations Convention on the Rights of the Child 1989, the United Nations International Covenant on Civil and Political Rights, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985, and the United Nations Guidelines for the Prevention of Juvenile Delinquency 1990. The main issues flowing from these conventions are that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The juvenile's right to privacy shall also be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling. A further point is that, in principle, no information that may lead to the identification of a juvenile offender shall be published.

Additionally, the committee considered the issue of the development of young offenders, particularly in regard to research in the fields of psychology and neuropsychology to the effect that juveniles, due to the relative underdevelopment of the frontal lobes of their brains compared with those of adults, warrant differential treatment within the criminal justice system. We were informed that this relative underdevelopment of the frontal lobes is responsible for some of the behavioural and emotional deficits observed in children. Professor Duncan Chappell from the Centre for Transnational Crime Prevention, Faculty of Law, University of Wollongong, explained the significance of the frontal lobes in higher-level thinking. He stated that the frontal lobes and their connections are responsible for higher thinking, extraction, hypothesising, juggling different ideas and possible solutions, forward planning and the associated voluntary delay of gratification for a future desired goal. Several inquiry participants also noted that the development of the frontal lobes and related abilities continued through adolescence and did not culminate until the early to mid twenties.

Deputy Chief Magistrate Helen Syme also noted the connection between impulsivity and juvenile offending, and the role played by substance abuse and risk taking. She stated that younger offenders, by reason of their lack of maturity, tend to commit offences impulsively either because of that lack of maturity—which is their lack of ability to foresee the consequences of what they are doing either personally or for the wider community—or because of the disinhibiting effects of substances. Younger offenders are, almost by definition, risk takers—again, either because of the effects of their immaturity or because of hormonal changes that are happening in their lives at that time. Therefore, for all those reasons, juvenile offenders and impulsivity tend to go together. Risk taking tends to equal impulsive behaviour. Several inquiry participants expressed the view that publishing the names of juvenile offenders would have a negative effect on their rehabilitation. I must say that I was swayed by their views. I refer members to paragraph 3.3 of the report, which reads:

The Chief Magistrate's Office quoted a 2006 judgement from the Northern Territory Court of Appeal as an example of the court's formal recognition of views from psychiatry, psychology and criminology that naming juvenile offenders is likely to act against their rehabilitation:

The fact now almost universally acknowledged by international conventions, State legislatures and experts in child psychiatry, psychology and criminology, [is] that the publication of a child offender's identity often serves no legitimate criminal justice objective, is usually psychologically harmful to the adolescents involved and acts negatively towards their rehabilitation.

The committee heard evidence that the impact of stigmatisation on juvenile offenders can come from two directions: firstly, other people's views of the offender; and, secondly, the offender's view of himself or herself. The impact of other people's views can be in the form of prejudice, and the impact of the offender's view of himself or herself can be in the form of negative self-identity. The Federation of Parents and Citizens Associations of New South Wales warned that naming young offenders "amplifies the image they are attempting to create for themselves."

We heard evidence that naming juvenile offenders would serve to marginalise further a group largely made up of individuals who are already marginalised. The Youth Justice Coalition suggested that naming would only increase hardship for those already experiencing significant hardship. We heard conflicting evidence from witnesses representing groups that advocate on behalf of the victims of crime. We acknowledged the view expressed by some inquiry participants that naming juvenile offenders would encourage them to take responsibility for their actions, and thereby impact positively on their rehabilitation.

We also agreed that responsibility and accountability are important elements in the rehabilitation of offenders but believe that these ends can be achieved without publicly naming juvenile offenders, and without the risk of negatively affecting their rehabilitation and increasing recidivism. It is important to emphasise that the prohibition is not intended to help juvenile offenders avoid responsibility for their actions. Offenders are still held accountable by the criminal justice system with their sentence intended to reflect denouncement of their conduct and punishment for the harm caused.

Since the report has been released some newspaper articles have been critical of the recommendations of the committee and critical of the intentions of the Children (Criminal Proceedings) Act. However, most of the articles have failed to recognise that at all times a judge hearing a matter concerning a juvenile offender has the right to order the publication of the name of the offender if it is in the interests of justice. The term "interests of justice" occurs in section 11 of the Children (Criminal Proceedings) Act in relation to the court having the authority to permit the publication of the name of a juvenile convicted of a serious children's indictable offence, whether or not the juvenile consents. The court may grant such permission only if it is satisfied that doing so is in the interests of justice.

I refer members to an article in the Sunday Telegraph on 15 June entitled "Evil rapist on street", which refers to a member of a notorious group of gang rapists who is nearing eligibility for parole. This person was 15 when convicted, and the judge ordered that he be named in the interests of the public. It is not as though this provision exists; it is just that no-one ever uses it. The committee supports the principle of transparency of justice, or open justice, and believes the prohibition in section 11 does not represent a significant departure from this principle, nor does it compromise the intention and effect of the machinations of justice that are subject to the check of public scrutiny. The public can be provided sufficient information about criminal proceedings involving juveniles to carry out this scrutinising function in regard to particular cases and to the conduct of juvenile criminal proceedings in general without the inclusion of the names of the juveniles involved. I will refer briefly to one recommendation that I think is very important. Recommendation 1 relates to an attempt to establish some national consistency in respect of these matters. The recommendation states:

That the NSW Attorney General seek co-operation from the Attorneys General in other States and Territories in implementing a consistent prohibition relating to the publication of names of children involved in criminal proceedings regardless of in which state those criminal proceedings occur.

That is very important, given that in some areas of New South Wales—for example, the North Coast, Albury-Wodonga and Broken Hill—it is very common for people to move across the border quite frequently. The media outlets that cover those areas report on both States. Given that media footprints do not neatly overlay State borders it is important to have national consistency. I commend the report to the House.

The Hon. PENNY SHARPE (Parliamentary Secretary) [3.02 p.m.]: I commend the Legislative Council Standing Committee on Law and Justice for its report entitled "Prohibition of the Publication of Names of Children Involved in Criminal Proceedings". This important report examines some complex issues about young people in the justice system in New South Wales. The committee has demonstrated how the committee system can deal with complex issues and make thoughtful contributions to reforming the law in New South Wales. I commend the members of the committee for their work. The Standing Committee on Law Justice report recognises that tension exists between an open justice system and the protection of children. It also recognises the question of whether the erosion of a child's rights to privacy, by naming in association with their acts, would further the interests of society.

Specifically, the report looks at whether prohibition on the publication of the names of children involved in criminal proceedings under section 11 of the Children (Criminal Proceedings) Act is serving its policy objectives. It is responding to the periodic calls for naming and shaming of children involved in criminal cases. But calls for the naming and shaming of kids miss the point that children are, and should be, treated differently to adults under the law. The committee was asked to inquire into whether the policy aims of section 11 were being met. One of the aims of section 11 is to "reduce the community stigma associated with a child's involvement in a crime, thereby allowing the child to be reintegrated into the community with a view to full rehabilitation". Young people can be impulsive and make mistakes. That is something that is recognised in Australian law and also in various international instruments. For example, article 3 (1) of the United Nations Convention on the Rights of the Child 1989 states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Rule 8.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 states:

The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

As the committee points out, the very existence of a separate juvenile justice system is based on this recognition that children warrant different treatment to adults under the law. It is a terrible reality that young people are sometimes responsible for reprehensible crimes, and the community feels that the naming of such offenders may serve the greater public interest. It is often in the heat of a legitimate emotive response to a crime that the community looks for ways to extract justice. We must always step back from this impulse and look closely at the evidence to establish what is most likely to deliver the best outcomes both for victims and for the community. Evidence presented to the committee suggested that the publication of the names of child offenders might hamper the chance of effective rehabilitation for some offenders, which has an impact both on the child and on society as a whole.

The New South Wales Commissioner for Children and Young People, Ms Gillian Calvert, said that not only is there no evidence to suggest that making a public example of kids who commit crimes assists in their rehabilitation; in fact, the evidence suggests that naming and shaming has the effect of stigmatising the offender. Such stigmatisation can lead to a range of negative impacts that are highlighted by the committee's report, including prejudice from other people and negative impacts on the offenders' chances of obtaining employment and/or accommodation. Today it is not uncommon for prospective employers or landlords to Google staff or tenants before giving them a job or renting them a house. Offenders, even if they have committed their crime and done their time and are now free to live in our society, can pay for a foolish act they committed as a young person. It can have ongoing effects. Unemployment and the inability to secure rental housing do nothing for a young person's prospects or his or her likelihood of not reoffending in the future.

Some participants in the inquiry went so far as to argue that stigmatisation pushes young people towards crime as they feel rejected by their communities and families. Juvenile justice is based, and should be based, on the principle of rehabilitation. This is the principle that the New South Wales Government has implemented over many years. Keeping children out of the courts and working to reintegrate them into society is a high and worthwhile aspiration. The committee examined the concept of reintegrative shaming, although I prefer the term "restorative justice", whereby offenders are held accountable for their actions in a controlled environment. Restorative justice is already an important part of the justice system in New South Wales, used in circle sentencing and youth justice conferencing.

Youth justice conferencing is a restorative justice approach, where offenders repair the harm caused to their victims. Youth justice conferences bring together young offenders, their families, victims of their offending and police. It can be and often is a confronting experience for young offenders. Conferencing empowers victims to participate actively in the justice process. Importantly, it requires young people to accept responsibility for their behaviour. By hearing first hand the views of their victims, young people are confronted, perhaps for the first time, with the impacts of their offending behaviour. Through facing up to the consequences of their crime, the young offender is better able to understand and repair the hurt and harm his or her actions have caused. By providing some form of restitution we are also helping offenders to reintegrate into the community in a positive way.

Outcome plans, which are developed in all conferences, can involve offenders apologising for their actions and/or making reparation, which is usually in the form of work for the victim or in the community. A common example is when offenders are required to repair graffiti they have put on victims' houses. Outcome plans can also include actions to address the causes of offending, for example, getting a young person back into education or encouraging them to take on other skills and training. In both programs offenders discuss the impact of their crime on the victim and their community in a controlled environment. During its inquiry the committee heard evidence that:

whilst this type of shaming (reintegrative shaming), ... can be effective, the type of shame arising from public naming (stigmatic shaming), where the offender's name becomes known to the readership and viewers of various media - most of whom the offender does not know or respect - makes no positive contribution to the rehabilitation of juvenile offenders.

The committee also noted in its report that programs such as youth justice conferencing "offer a way of addressing victim's issues without publicly naming the offenders, by identifying the offender and victim within a controlled environment". Restorative justice is a sophisticated and evidence-based approach to justice that actually works. The New South Wales Bureau of Crime Statistics and Research reports that juveniles who receive a youth justice conference are less likely to reoffend than those who are referred to the Children's Court. Youth justice conferencing has a high level of success, with the New South Wales Bureau of Crime Statistics and Research reporting that 42 per cent of offenders who complete conferences do not go on to reoffend within a five-year period. Significantly, 58 per cent of young people cautioned do not reoffend within five years. Importantly, international research reports that approaches based on conferences also help a victim to recover more quickly from the trauma of crime—a benefit both to the victim and to the community. The evidence presented to the committee clearly showed that publicly naming and shaming kids works contrary to the best interests of the child, even when it may be seemingly in the public interest. Importantly, the committee also acknowledged times when naming may be appropriate. The report points out:

the Children (Criminal Proceedings) Act currently allows for the publication of the names of juvenile offenders where a court decides it is in the interests of justice (provided the prejudice to the offender does not outweigh these interests).

This is a decision properly made by the sentencing court at the time of sentencing, not at the early stages of reporting a case when all the relevant facts of the case may not be available. The committee also noted that not publishing the names of offenders is not intended to help young offenders avoid responsibility for their actions. Such offenders are held accountable by the criminal justice system. This report makes an important contribution to the debate on how best to design a justice system that reduces crime and meets the needs of victims and the community at large. It places the special needs of children and young people in that context.

I acknowledge the question asked today by Reverend the Hon. Dr Gordon Moyes on the specific circumstances in which many children find themselves in the criminal justice system. Many of them have been abused, many of them have poor parenting, and the parents of many of them have previously been in jail. These children need an opportunity to turn their lives around. I look forward to the Government's response to the sensible recommendations in this report. Again I congratulate the committee on a consensus-based report that is making a real contribution to law reform in this State.

Debate adjourned on motion by the Hon. Michael Veitch and set down as an order of the day for a future day.