Standing Committee on Law and Justice

Debate resumed from 24 September 2008.

The Hon. GREG DONNELLY [2.30 p.m.]: I am pleased to speak to this important report tabled in the House entitled "The Prohibition on the Publication of Names of Children Involved in Criminal Proceedings". I thank all members of the committee, under the chairmanship of the Hon. Christine Robertson, who worked cooperatively to come up with a relatively small set of recommendations—only eight, but eight very important recommendations that we hope the Government will carefully consider and implement most of them, if not all of them.

On 16 October 2007 the New South Wales Attorney General, the Hon. John Hatzistergos, referred the inquiry to the Standing Committee on Law and Justice. The committee was asked to specifically report on the validity of the policy objectives behind the prohibition and how effectively those objectives were being met. The committee was asked also to consider whether the prohibition should be extended—and I shall return to that later because it forms one of our important recommendations. Following consideration of all the evidence, the committee reaffirmed the validity of the policy objectives behind the prohibition and recommended that it be extended to cover children who are reasonably likely to become involved in criminal proceedings so that children who may be the subject of police investigations are also protected.

The committee has recommended also that a special unit within the New South Wales Police Force be identified to investigate alleged breaches of the prohibition. The prohibition is contained in section 11 of the Children (Criminal Proceedings) Act 1987. Section 11 prohibits publication of names or material that may lead to identification of any child involved in criminal proceedings. "A child" is defined as a person under 18 years of age and "criminal proceedings" are considered to have commenced with the laying of charges or the issuing by police of a court attendance notice. The prohibition covers children who are defendants, offenders, victims or witnesses, or who are otherwise mentioned during proceedings.

An exception can be made to the general prohibition in the case of a child convicted of a serious children's indictable offence. A child over the age of 16 can give permission for his or her name to be published and a child under the age of 16 can give consent along with the consent of the court. In addition, if a child victim is deceased, the senior available next of kin can give permission for the names to be published. The policy objectives of the prohibition are to protect child offenders, victims and witnesses from the stigma of association with a crime and to assist in their rehabilitation and recovery. The child siblings of deceased children are also protected from the publicity that may follow from the naming of the deceased. The power to decide whether the deceased child is publicly named is given to the family.

The committee heard evidence from a range of major stakeholders within the criminal justice system. The Attorney General's Department, the Department of Juvenile Justice, the Director of Public Prosecutions, the Legal Aid Commission, the Public Defender's Office, the Chief Magistrate's Office and a number of others provided either detailed submissions or evidence. Children are treated differently to adults within the criminal justice system, in recognition of the fact that they are less developed emotionally and cognitively, and tend to act more impulsively.

The committee heard evidence that it is the relative underdevelopment of the front part of the brain, referred to as the frontal lobe, that continues to develop into one's mid-20s that largely accounts for the reduced capacity, propensity to act impulsively, lack of planning for the future, inability to foresee the consequences of their actions, and the tendency to delay gratification that we observe in young children. The prohibition in section 11 of the Children (Criminal Proceedings) Act keeps legislation in New South Wales aligned with the international instruments that Australia has endorsed, namely, several United Nations declarations, covenants, guidelines and rules, all 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.

Naming juvenile offenders is likely to lead to stigmatisation in the form of prejudice from other people, reducing the offender's prospect 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 that the juvenile may be associated with or know, and his or her image of himself or herself as a criminal and as a deviant. There was evidence to suggest that some juvenile offenders or would-be offenders would regard being publicly named as some sort of badge of honour or something to which they could aspire. It has been argued that publicly naming juvenile offenders would act as a deterrent to them or any would-be offenders. However, for those juveniles seeking notoriety, the promise of publicly naming them 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 are not a significant deterrent for young people.

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 murdered victims about the devastating effect that the murder of their child has had on them—and this testimony was the most moving evidence heard in the inquiry. This effect was combated in some cases by the negative experience they had in the criminal justice system due, in part, to 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 heard in testimony, youth justice conferencing is that confidential process that is used in 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 while 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. Most committee members generally did not accept that argument. We believe that the capacity of our media, in all its forms, is generous in terms of its ability to provide to the general public detailed information about acts or criminal behaviour of young people, without having to go to the extent of naming them. The committee notes the distinction between what is "of public interest" and what is "in the public interest". In our view, they are quite different things.

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, regardless of whether it contains the names of the juveniles involved. This relates to where they choose to publish the story within the publication. 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 an 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. I conclude by acknowledging, in particular, the secretariat staff, who worked tirelessly in assisting us to put the report together. I commend the report to the House.

The Hon. CHRISTINE ROBERTSON [3.40 p.m.], in reply: I thank the Hon. John Ajaka, the Hon. Amanda Fazio, the Hon. Penny Sharpe, Ms Sylvia Hale and the Hon. Greg Donnelly for their participation in this debate and their thoughtful contributions to it. I want to respond to an issue raised by the Hon. John Ajaka in relation to the identification of a special unit within the New South Wales Police Force to investigate alleged breaches of section 11. There have been very few prosecutions for breaches of section 11 since the Act's commencement. One reason for that is that media outlets are generally cooperative in complying with the prohibition. However, it was suggested that there was some confusion about to whom alleged breaches of section 11 should be reported. The Police Force, the Office of the Director of Public Prosecutions and the Attorney General's Department are all reasonable candidates.

In addition, police officers who become aware of potential breaches may not have the necessary expertise or experience to investigate what may be a matter involving complex corporate entities. Furthermore, a police officer may have a real or perceived conflict of interest if the alleged breach is in relation to a juvenile the police officers are involved in prosecuting. To address all these issues, the committee recommends that a special unit be identified within the New South Wales Police Force to be the primary recipient of complaints relating to section 11, and to investigate complaints and prepare a brief of evidence for the Office of the Director of Public Prosecutions. An existing unit such as the Office of the General Counsel would have the necessary expertise and experience to carry out this function.

The committee reaffirms the policy objectives behind section 11 of the Children (Criminal Proceedings) Act 1987, that children be protected from the stigma of being associated with a crime. The evidence presented to the committee clearly supported the general proposition, as reflected in the international instruments relating to children, that they be treated differently from adults in the criminal justice system, in recognition of their relative immaturity, and in particular that their privacy be protected. Publicly naming and shaming juvenile offenders is more likely to increase the likelihood of their reoffending rather than reduce it. The committee heard considerable evidence to support that.

The recommendations contained in the committee's report are intended to bolster the effectiveness of the prohibition in achieving these policy objectives and to make the process of reporting, investigating and prosecuting breaches of section 11 more efficient. I thank all those who participated in the inquiry by making submissions and presenting oral evidence. Their experience and expertise greatly assisted the committee in addressing the terms of reference. Without their assistance we would not have had anything to work on, except our own perceptions.

Committee members approached the report from many different angles. Many of us had different perceptions about the issues, and the committee worked incredibly hard to ensure that we were able to receive balanced evidence. We received evidence contradicting the current situation, and we also received evidence calling for improvements to the legislation. Overall, the evidence we received was extremely balanced; arguments were presented for and against the various issues the committee dealt with. Committee members worked collectively and independently to come up with a consensus on recommendations to be included in the report. I am very proud that the committee was able to do that.

There has been some good follow-up in the general media in relation to this issue, but there has also been interesting follow-up with deliberate distortions of the committee's findings and recommendations. I find that very distressing, but I guess that is part of the democratic world we live in. I hope that the Government in its response to the report addresses the issues from a government perspective, and that members who read the report are able to reinforce the findings of the committee.

I apologise for getting personal about this, but I feel that this was an extremely difficult inquiry for the committee. Indeed, I believe it was given to the committee because it was a difficult inquiry and because we are a diverse committee with diverse viewpoints. Ms Sylvia Hale outlined that particularly well in her speech. As members have said, the inquiry process was assisted by the committee secretariat, which for this inquiry comprised Mr Simon Johnston, Mr Jonathan Clark and Mr Samuel Griffith, who had to work through very difficult issues to ensure the committee received balanced evidence, and to ensure that the people who were extremely angry about the naming of children in these circumstances were given a fair and honest hearing. The committee also worked very hard to ensure that that happened. I congratulate the committee secretariat on working through these sensitive issues.

I thank the committee members for their work during the inquiry and for their efforts in coming up with a consensus decision. I know that, for some of us, working with our peers on this issue has not always been easy because there are certain sectors on both sides of this House who believe that "naming and shaming" can be rationalised to be a worthy endeavour. However, I believe the committee members worked very hard to put forward a balanced perspective.

Another issue that has been raised in the media relates to our concern that whatever recommendations the committee makes could well make policing more difficult. The committee ensured it heard evidence from members of the Police Force to inform us how the committee's recommendations could affect their policing work. We were pleasantly surprised that the police who had worked through this issue did not believe that not naming children would affect their policing work. Certainly their evidence belied the information that some members of the media use to deliberately frighten people into imagining that in some way New South Wales is underhandedly using something that is secret. I commend the report to members. I look forward to the Government's response to it. I thank everyone involved in producing the report.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.