Identification in criminal matters and in court records

69.83 Information held by courts—including case files, judgments, and case management systems—often identify children and young people who are associated with proceedings, whether as a party to a civil or administrative proceeding, a defendant or victim in a criminal matter, a child involved in a family law dispute, a witness, or merely mentioned as part of the proceedings.

69.84 The judicial records of courts are presently exempt from the Privacy Act.[98] Courts traditionally have been responsible for governing access to these records, and policies vary from court to court. As noted in Chapter 11, however, the advent of online access to court records opens up the possibility of these records being readily viewed by a large number of people for a variety of purposes. Given the extent of personal information that may be contained in court records, this raises significant privacy concerns.

69.85 The privacy of children and young people inside the courtroom has attracted more judicial and legislative protection than the privacy of children in other circumstances.[99] Both the United Nations Convention on the Rights of the Child (CROC) and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules) refer specifically to a young person’s right to privacy at all stages of juvenile justice proceedings.[100] Rule 8.1 of the Beijing Rules notes that this is ‘in order to avoid harm being caused to her or him by undue publicity or by the process of labelling’. The rule is explained in the official commentary.

Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as ‘delinquent’ or ‘criminal’. Rule 8 also stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case (for example, the names of young offenders, alleged or convicted).[101]

69.86 Concerns also have been raised about the psychological damage that a child or young person involved in, or associated with, other kinds of cases might experience if identified in the media. This could include particularly difficult family law cases, child welfare cases, or high profile criminal law cases where the defendant has children who might suffer as a result of publication of the name or image of the accused.[102] Stigma also may attach, for example, to immigration cases involving refusal of visas or applications for government payments.[103]

69.87 Based on the fundamental rule that proceedings generally take place in open court, the common law has developed principles regarding a court’s power to suppress publication of certain details of evidence before the court, balancing certain public interests against the interests of open justice. One such public interest includes protecting the interests of children.[104] Many Australian courts and tribunals have specific powers to make suppression orders under their establishing legislation.[105]

69.88 Legislation relating to child welfare and criminal matters before children’s courts in most jurisdictions have prohibitions on the publication of identifying information about a child who is involved in proceedings.[106] The Family Law Act has a more general prohibition in relation to any person who is a party, related to or associated with a party, or is a witness to proceedings.[107] The extent of the prohibitions vary, and in most cases the legislation permits, or a judge may permit, publication in certain circumstances.[108] One exception is the Northern Territory legislation relating to juvenile offenders, which has as its starting point that there is no prohibition on publication, but gives the court a discretion to order that a report, information relating to proceedings or the results of proceedings, not be publicised.[109]

Submissions and consultations

69.89 While the NCYLC suggested it may be appropriate to move child welfare and criminal law privacy-related provisions into the Privacy Act,[110] there was support for retaining the purpose-built provisions preventing the disclosure of the identity of a child or young person in relation to juvenile justice proceedings in the specific legislation in each jurisdiction.[111] The absence of such a provision in the Northern Territory, however, was seen as requiring specific reform.[112]

69.90 Some young people allegedly involved in criminal behaviour were named, or publicly identified through publication of their photograph, in the media following the Cronulla riots in December 2005.[113] It was suggested in a number of submissions that the provisions that restrict disclosure of the identity of children and young people should be extended to cover criminal investigations as well as court proceedings, because the policy reasons for this protection apply at all stages of the criminal process.[114]

69.91 The ALRC did not receive any submissions suggesting there were problems with the handling of court records involving children and young people, with the exception of one stakeholder concerned about the operation of the spent convictions scheme in relation to young offenders, and the privacy concerns arising from this issue.[115] Broader issues regarding privacy of court records are discussed in Chapters 11 and 35.

ALRC’s view

69.92 In this Report and Same Crime, Same Time: Sentencing of Federal Offenders (ALRC 103),[116] the ALRC has noted the public policy reasons behind prohibiting the public identification of young people involved in criminal proceedings—especially the rehabilitative aims of the juvenile justice system. It is of particular concern that the Northern Territory has no automatic limitation on publication of court proceedings that identify a young person. In ALRC 103, the ALRC recommended the enactment of a provision prohibiting the publication of a report of criminal proceedings that identifies, or is likely to lead to the identification of, a child or young person.[117] Such a prohibition is appropriate. The Australian Government should implement this recommendation.

69.93 The ALRC also encourages consideration of broader provisions relating to public identification of a child or young person alleged to have committed a crime, applying throughout the criminal investigation and proceedings. The ALRC considers that these provisions are situated most appropriately in relevant state and federal legislation dealing with child welfare or criminal matters. This issue lies beyond the scope of this Inquiry and the ALRC has not made a recommendation on the issue.

69.94 While issues relating to spent convictions schemes are outside the scope of this Inquiry, the ALRC notes that the development of uniform spent conviction laws are currently under consideration by the Standing Committee of Attorneys-General (SCAG).[118]

[98] The ALRC does not recommend any change to this situation: see discussion in Ch 35.

[99] J Moriarty, ‘Children, Privacy and the Press’ (1997) 9 Child and Family Law Quarterly 217, 219.

[100] Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990), art 40(2)(b)(vii); United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc A/RES/40/33 (1985), r 8.1. See Ch 68 for a discussion of the application of these international instruments in Australia.

[101] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc A/RES/40/33 (1985), r 8 commentary.

[102] See, eg, R Taylor, ‘Re S (A Child) (Identification: Restrictions of Publication) and A Local Authority v W: Children’s Privacy and Press Freedom in Criminal Cases’ (2006) 18 Child and Family Law Quarterly 269.

[103] For example, the case of Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83 involved a rejected application for Austudy at the student homeless rate, including addresses and details of the applicant’s relationship with his parents. Note that Migration Act 1958 (Cth) s 91X prohibits the publication of names of applicants for protection visas in the High Court of Australia, Federal Court of Australia or Federal Magistrates Court.

[104] Johnston v Cameron (2002) 124 FCR 160, 167. It should be noted that in the United Kingdom, following the introduction of the Human Rights Act 1998 (UK), much of the debate is now centred around competing rights such as the right to privacy versus the freedom of expression: H Fenwick, ‘Clashing Rights, the Welfare of the Child and the Human Rights Act’ (2004) 67 Modern Law Review 889; I Cram, ‘Minors’ Privacy, Free Speech and the Courts’ (1997) Public Law 410.

[105] See, eg, Federal Court of Australia Act 1976 (Cth) s 50; Administrative Appeals Tribunal Act 1975 (Cth) s 35(2).

[106] See, eg, Children and Young Persons (Care and Protection) Act 1998 (NSW) s 105; Children (Criminal Proceedings) Act 1987 (NSW) s 11. The relevant provision of the Children (Criminal Proceedings) Act 1987 (NSW) is the subject of a current inquiry by the New South Wales Legislative Council Standing Committee on Law and Justice.

[107] Family Law Act 1975 (Cth) s 121.

[108] See, eg, the power of the court to order that the name and identity of certain young convicted offenders be made public in Juvenile Justice Act 1992 (Qld) s 234.

[109] Youth Justice Act 2005 (NT) s 50. See also discussion of a number of examples of media reporting in the Northern Territory in ABC Radio National, ‘Naming and Shaming Juvenile Offenders’, Law Report, 3 October 2006.

[110] National Children’s and Youth Law Centre, Submission PR 491, 19 December 2007.

[111] Office of the Victorian Privacy Commissioner, Submission PR 217, 28 February 2007.

[112] National Children’s and Youth Law Centre, Submission PR 166, 1 February 2007.

[113] Ibid, NSW Commission for Children and Young People, Submission PR 120, 15 January 2007; Legal Aid Commission of New South Wales, Submission PR 107, 15 January 2007.

[114] Youthlaw, Submission PR 390, 6 December 2007; Youth Affairs Council of Victoria Inc, Submission PR 388, 6 December 2007; National Children’s and Youth Law Centre, Submission PR 166, 1 February 2007; Youthlaw, Submission PR 152, 30 January 2007; NSW Commission for Children and Young People, Submission PR 120, 15 January 2007. See also concerns about case naming a 12 year old pregnant girl (ie, a victim) in the media where no charges were laid: J Simpson, Submission PR 336, 29 October 2007.

[115] Youthlaw, Submission PR 390, 6 December 2007.

[116] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, ALRC 103 (2006), [27.62]–[27.66].

[117] Ibid, Rec 27–1. Due to the scope of the terms of reference of that inquiry, the recommendation was limited in application to the sentencing, administration and release of federal offenders.

[118] Standing Committee of Attorneys-General, ‘Communiqué’ (Press Release, 28 March 2008).