Committee report: The prohibition on the publication of names of children involved in criminal proceedings

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 in 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 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.

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985, rule 8.1, 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 sometimes young people are responsible for reprehensible crimes, and that the community feels that naming such offenders may serve the greater public interest. It is often in the heat of the 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 of what is most likely to deliver the best outcomes both for victims and the community. Evidence presented to the committee suggested that the publication of the names of child offenders may hamper the chance of effective rehabilitation for some offenders, which has an impact both on the child and society as a whole.

The New South Wales Commissioner for Children and Young People, Ms Gillian Calvert, has said that not only is there no evidence to suggest that making a public example of kids who commit crimes assists in their rehabilitation but, 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 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 does nothing for a young person's prospects nor their likelihood to not reoffend in the future.

Some participants in the inquiry went so far as to argue that stigmatisation, in fact, pushes young people towards crimeas they feel rejected by their own communities and families. Juvenile justice is 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 aspiration, and a worthwhile one. 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 is often a confronting experience for young offenders. Conferencing empowers victims to actively participate 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 their 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 recover more quickly from the trauma of crimea benefit to both 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 over how we best 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 been in jail previously. 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.