Standing Committee on Law and Justice

Debate resumed from 18 June 2008.

Ms SYLVIA HALE [2.40 p.m.]: I must say this was a very interesting and harmonious committee of which to be a member. The recommendations of the committee were supported unanimously. The inquiry originated from a number of cases last year involving juvenile offenders. The offenders were under the age of 16 and could not be named because of their age. That resulted in the media applying heat to the Government to change the law and permit offenders to be named and shamed.

Of course, the media is ever eager to promote moral panic, to play on both Government and Opposition law and order proclivities and to pander to the voyeuristic tendencies of members of the public. To divert heat and to get a fairly reasoned and calm-headed assessment of the issues, the Attorney General referred the issue to the Standing Committee on Law and Justice for a report on the prohibition applied to the publication of names of children involved in criminal proceedings, particularly regarding the ongoing validity of the Children (Criminal Proceedings) Act 1987, the Act's policy objectives, and the extent to which section 11 of the Act was achieving those objectives. The committee Chair's foreword states:

the weight of evidence presented to the Committee clearly indicates support for the current prohibition, and in fact warrants its extension to cover the period prior to the official commencement of criminal proceedings and the inclusion of any child with a reasonable likelihood of becoming involved in criminal proceedings.

The committee's Recommendation 7 suggests that the Government examine the feasibility of extending the prohibition not only to children involved in criminal proceedings but also to those involved in civil proceedings. I will focus on the recommendation that the prohibition be extended to the period prior to the commencement of criminal proceedings, but before doing so I will make several other observations.

The committee comprised: from the Labor Party, the Hon. Christine Robertson, who is the Chair, the Hon. Greg Donnelly and the Hon. Amanda Fazio; from the Liberal Party, the Hon. David Clarke, who is the Deputy Chair, and the Hon. John Ajaka; and me, from the Greens. Members of the House will concede that the political spectrum from Right to Left was represented and that, with one or two honourable exceptions, it was not a collection of bleeding hearts. What I found particularly telling and an indication of the worth of the committee process was the comment made by one member that he had gone into the inquiry assuming that justification for lifting the prohibition was self-evident, and had emerged supporting retention, and even extension, of the prohibition.

The committee was unanimous in recommending retention and even extension of the prohibition, although the reasons for doing so varied. Some clearly were convinced that the prohibition was inherently reasonable and provided a valuable protection for both perpetrators and victims of crime, whereas others were reassured that there was judicial discretion to agree to the naming of a child if, in the opinion of the court, the circumstances warranted it. I believe that the unanimous view of the committee expressed in its recommendations should cause the Attorney General to give serious consideration to implementing the recommendations at the earliest opportunity.

I turn now to the issue of whether the prohibition on naming a suspected juvenile offender or even a potential child witness should extend to the period prior to the offender being charged or a court attendance notice being issued. Among the numerous inquiry participants who supported this proposal were the Youth Justice Coalition; Andrew Haesler, SC, Deputy Senior Public Defender with the New South Wales Public Defenders Office; Professor Duncan Chappell from the Centre for Transnational Crime Prevention; Gillian Calvert, the New South Wales Commissioner for Children and Young People; Helen Syme, a Deputy Chief Magistrate; the Shopfront Youth Legal Centre; Nicholas Cowdrey, the New South Wales Director of Public Prosecutions; and Brett Collins, the coordinator of Justice Action.

Even the New South Wales police force was not opposed to extension, provided that the wording of the relevant provision was very carefully undertaken so that it did not, for example, prevent broadcasting a child's name over the police network or inquiries being made about a child's whereabouts. Professor Duncan Chappell commented that, "I think it is a weakness in the present legislation and by the time that charges are laid the damage is overwhelmingly done." Deputy Chief Magistrate Helen Syme indicated her support for the extension of the period to prior to the laying of charges and said, " especially if it encourages youth conferencing to occur prior to charging." The Shopfront Youth Legal Centre argued against naming children who, in the course of the investigation, become suspects—a view that was endorsed by the Director of Public Prosecutions, who noted that investigations may commence before a child is even interviewed and who urged that, "Where the investigation involves a child, there should be a prohibition."

Clearly there was a range of arguments in support of extending the prohibition, but a common thread was that it would be wrong to publicly name a child, with all the potentially adverse consequences that might result, when that child had not even been charged, let alone found guilty of an offence. An additional concern was raised by Peter Breen, who is a former member of the House. His concern was that there is currently no prohibition applying to the naming of children accused of civil, rather than criminal, wrongs. He questioned the morality of the mass media naming and shaming a child as a bully and cited an instance of a child's photograph being widely distributed through the newspaper, regardless of the long or short-term impacts upon that child, which may include the child's ability to be counselled, to improve behaviourally, and the long-term impacts on adulthood if the newspaper coverage subsequently comes to light. Andrew Haesler, who is the State's Deputy Senior Public Defender, gave another graphic example:

Let us assume that it is someone suing for a horrible brain injury with all sorts of detrimental effects, and psychologists are giving evidence in court about the psychosexual problems of a young child, which are compensable. It would be horrendous if that were reported and it would cause inestimable damage If the legislation could be drafted in such a way as to cover civil proceedings where those sorts of things are revealed, I would not be opposed to it.

I find that to be a particularly compelling argument. Much of the report deals with the impact of naming, the stigma that can attach not only to the person named but to the child's family or even extended family, and its impact upon the person named being able to integrate into the community. The report provides very substantial grounds for supporting extension of the prohibition to civil matters as well as to the period before charges are laid in criminal matters.

I note that great concern was expressed in the committee about young children. There was a lot of evidence that young children will often act without premeditation during a period when their brains have not matured sufficiently and that, in particular, this affects young men up to the age of 25. Therefore I am concerned that even last week, while we had this concern about young children, in practice the Government seemed not to follow through. Three juveniles, who had been transferred to an adult prison, were the subject of an order by a justice of the Supreme Court for transfer back to a juvenile detention facility. The Department of Juvenile Justice had requested that they be given 10 days to organise the transfer, but the court gave them approximately three days.

Clearly, the court was concerned about the detrimental effect on the juveniles of incarcerating them in adult institutions. I am utterly convinced that if the focus on the care of and concern for the welfare of young adults and juveniles transferred into adult facilities were the same as the focus placed by the committee on the naming of juveniles, we would have a very different outcome. [Time expired.]

Debate adjourned on motion by the Hon. Greg Donnelly.