Australian Press Council submission to the Standing Committee on NSW Legislative Council Standing Committee on Law and Justice Inquiry into the Prohibition on the Publication of Names of Children Involved in Criminal Proceedings.

12 December 2007

Executive Summary

The Australian Press Council is of the view that legislation that prohibits the publication of the names of minors involved in criminal proceedings should be revised. The revised legislation should distinguish between children, being minors under the age of sixteen, and young adults, being aged between sixteen and eighteen years of age. Where the relevant individual is sixteen or over, there should be a presumption in favour of publication. In such instances the party seeking orders prohibiting publication would bear the onus of persuading the court that suppression would be in the public interest. Where the relevant individual is fifteen or under, there should be a presumption in favour of confidentiality, whereby the party seeking publication or disclosure should bear the onus of establishing the public interest in doing so. The Press Council's submission is that there should be a presumption in favour of naming people over the age of 16 who have been convicted of offences, and that restrictions on naming children as witnesses can be removed in some circumstances.

Submission

The Australian Press Council is grateful for being given an opportunity to make a submission to the inquiry. The Press Council's Charter of Free Press in Australia holds the following as one of its key principles:

Laws, regulations and practices which in any way restrict or inhibit the right of the Press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people's right to know.

With regard to legislation that is specifically concerned with the publication of the names of children, the Press Council accepts that publication of information that identifies minors involved in criminal proceedings may not be appropriate in some circumstances. However, the Press Council is of the view that publication should, in general, only be restricted where the private interest in confidentiality clearly outweighs the public interest in disclosure.

The Press Council recognises that there are valid reasons for protecting young children from public attention, and existing legislation does this very effectively, for example in relation to victims of sexual assault and with regard to reports of matters in the Family Court. But the Council is also aware of valid reasons for disclosing the identities of minors who are involved in criminal proceedings, whether as defendants or as witnesses. At the most basic level, the public has a right to be informed of information that relates to issues of public safety and welfare. Moreover, the exposure of offenders to public "shaming" has an important function in vindicating the victims of crime and providing them with a sense of justice. Inappropriate protection of the confidentiality of offenders can cause victims to feel resentment and anger and a sense of betrayal by the courts.

Some theorists have suggested that "naming and shaming" can act as a deterrent to other potential offenders, by illustrating the serious consequences of offending behaviour. Naming and shaming may also have a role in discouraging re-offending, by embarrassing the families and peers of offenders and thereby inducing pressure upon offenders to rectify their behaviour. The media clearly have a role to play in public naming and shaming, by making communities aware of convictions.

There is a need for courts to be able to discriminate between those circumstances where suppression of the identities of minors is warranted and those where publication of identifying information should be permitted. In this regard, a degree of judicial discretion is required. But that discretion should be subject to limits and guidelines to ensure that it is not exercised in a manner inconsistent with public interest and expectations.

For the purposes of determining the appropriateness of disclosing the identities of minors involved in court proceedings, the Press Council believes that a distinction should be made between children and young adults. Although the exact age at which these categories should be delineated is debatable, there is an age at which most individuals are aware of the consequences of their actions and can be regarded as being capable of making reasoned decisions about their conduct. While individuals below this age may warrant protection and privacy, individuals over this age should be considered accountable for their actions. The Press Council notes that the age of consent in NSW is sixteen years.

Offenders

Certain recent, high profile cases have brought attention to the existence of a genuine public interest in the identification of people convicted of very serious offences. With specific regard to young offenders who have been convicted of such offences, the Press Council is of the view that legislation which prohibits or restricts the publication of names of minors involved in criminal proceedings, including the Children (Criminal Proceedings) Act 1987 (NSW) and the Young Offenders Act 1997 (NSW), should be revised so that offenders between the ages of 16 and 18 can be named, but only after conviction. In such instances any party seeking orders prohibiting publication of the names of such convicted young adults would bear the onus of persuading the court that suppression would be in the public interest. However, the onus would be discharged by establishing that the individual's prospects for rehabilitation are good and that they would be jeopardised by publication. Similarly, the onus would be discharged by demonstrating that offenders did not have the capacity to comprehend that their conduct was wrong.

Where the relevant individual is aged fifteen or under the legislation should be revised so that there is a presumption in favour of confidentiality, whereby the party seeking publication or disclosure should bear the onus of establishing the public interest in doing so. Even though the presumption is against publication in relation to minors under fifteen, the court should nonetheless have discretion to permit publication where appropriate.

Obviously, in assessing whether the public interest lies in publication the court would have regard to the offender's prospects for rehabilitation, the impact of publication on the victim, the seriousness of the crime, remorse on the part of the offender, impact on the families of both victims and offenders, likely impact on witnesses and the public right to be informed on matters pertaining to community safety. It would also be appropriate to take into account the views of the victim as to whether the offender should be publicly named.

Witnesses

The existing NSW provisions covering children as witnesses are also far too broad, in the Press Council's view. The Council supports provisions such as those protecting the identities of victims of sexual crime as being in the public interest. But it sees no reason, for example, why a 14 year old who witnessed an armed robbery should not be identified, unless a judge has ordered that the child's identity not be published. In so far as legislation now prohibits judges exercising discretion in these sorts of situations, the legislation should be amended.

Conclusion

It is the Press Council's view that there should be a presumption that children will be identified when they are over the age of 16 and have been convicted, or when they involved in proceedings only as witnesses, unless a judge decides that the identities should be concealed in the public interest.

The Press Council is mindful of the particular complexities that surround the treatment of juveniles who come before the courts and the need for some minors to be protected, even those who have been engaged in criminal conduct. Nevertheless, the Press Council believes that there are circumstances in which publication of information that identifies minors is warranted. In these situations the courts should be encouraged to allow publication.

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See also
Index of privacy material on the website

Index of courts and contempt material on the website

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