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Prohibited Behaviour Orders (“Name and Shame”) Bill 2010

Extract from Hansard – Tuesday, 17 August 2010

MS A.S. CARLES (Fremantle) [8.05 pm]: I rise to speak against this legislation and I am pleased to see that the opposition is taking a hard line on the Prohibited Behaviour Orders Bill 2010. I am glad to see that the bidding war about who in this Parliament can be the toughest on crime is now over.

This bill is based on the failed United Kingdom experience. It is very similar to the government’s proposed stop-and-search legislation that we have been debating. I notice that that legislation has also failed in the UK and I hope that this government will look closely at that.

We will be the only state with laws this strict. In New South Wales the Children (Criminal Proceedings) Act makes it an offence to publicly name someone involved in a crime who is under the age of 18. The policy behind that comes from international law, largely from the UN Convention on the Rights of the Child, to which Australia is a signatory. The New South Wales act states that although children should bear responsibility for their actions, due to their immaturity they require guidance and assistance and it is desirable for their future employment prospects that they are able to be reintegrated into the community and that their privacy is protected.

I note the comments made by Nicola Ross, who is a lecturer in child law at the Newcastle University School of Law and who is undertaking a PhD on children in the legal process. She talks about the rationales behind protecting the identity of children and stated —

… rationales are that if you publicise people’s involvement in crimes, even as witnesses, but particularly as offenders, their possibilities of future employment are potentially damaged and one of the ways in which you integrate people into the community is by supporting both their self esteem and their employment opportunities.

From a human rights perspective, laws that allow the press to name and shame juveniles and allow the government to paste information like this on the internet would breach our international obligations under the UN Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The United Nations standard minimum rules for the administration of juvenile justice, known as the Beijing rules, state that in principle no information that may lead to the identification of a juvenile offender shall be published. As I have mentioned, one of the major reasons for this is that it jeopardises juvenile offenders’ future reintegration into society, future opportunities to be employed, inflicts psychological damage and can lead to verbal and physical abuse. In short, it deals a knockout blow to any prospect for their future rehabilitation.

I note that the Northern Territory is the only territory that has a similar provision that enables the publication of photos of juvenile offenders. In a recent case three judges made some very interesting comments about the publication of juveniles’ personal information. The court observed that in exercising its discretion to suppress the identity of juvenile offenders, it is very important to —

… weigh in the balance the fact now almost universally acknowledged by international conventions, —

Mr C.C. Porter: What’s the name of the case, member?

Ms A.S. CARLES: It is MCT v McKinney and Others, 2006, NTCA 10.

… State legislatures and experts in child psychiatry, psychology and criminology, that the publication of a child offender’s identity often serves no legitimate criminal justice objective, is usually psychologically harmful to the adolescents involved and acts negatively towards their rehabilitation.

I will briefly talk about the United Kingdom’s experience of failure because the opposition has already spent a lot of time talking about that so I will not waste the Parliament’s time. I thought it was rather interesting to hear the examples that the member for Maylands touched on and the rather bizarre cases that have come through.

In one case, teenage boys in Manchester were banned from wearing one glove because it was a symbol of gang membership. Other teenage boys have been banned from playing football in the streets. There was an interesting case of 70 pensioners who were threatened with these anti-social behaviour orders because they had loud bingo parties; we had 90-year-olds being threatened for being too rowdy. I really hope that we do not go down that line in Western Australia.

The research from the United Kingdom also shows that these ASBOs have been used against people with mental disabilities. This is a problem with our mandatory sentencing legislation. The first person who was involved with that had a mental illness. The 2007 National Audit Office report found that one-third of ASBOs had been breached five times or more, so they were basically ineffective. The Whitehall spending watchdog said that warning letters were far cheaper and more effective.

Many people in Australia have started speaking out against this naming and shaming. I will refer to a few of them now. Associate Professor Julian Bondy, a specialist in juvenile justice at RMIT University, said that it is basically the modern-day equivalent of putting people in the stocks. The research shows that it is effective only in very specific circumstances, and these do not include simply producing a rogues gallery for public pillory.

The WA Commissioner for Children and Young People, Michelle Scott —

Mr C.C. Porter: Member, would you be surprised to find judicial support for these orders in the UK?

Ms A.S. CARLES: I would be surprised by that, so I will be interested to hear what the Attorney General has got.

The WA Commissioner for Children and Young People, Michelle Scott, is warning that it will erode a fundamental safeguard for children. She has said that protecting the identity of children and young people is a longstanding safeguard, and she warned that its removal should be the subject of serious consideration and public debate.

Dennis Eggleton from the Aboriginal Legal Service—of course the Aboriginal Legal Service has huge problems with this legislation—has warned that it goes too far. He has said, according to my notes —

We do treat children differently, we give them chances, we try to put them on the right path.

As a parent, I certainly concur with his view. Children are immature, but we need to give them a second chance. Putting them on a conveyor belt into the prison system is completely counterproductive. At some point they are going to come out that end with serious problems, and then who is going to face those?

Chris Sidoti, former Australian Human Rights Commissioner, warns about the hero status problem that we have talked about tonight. He has said that the laws only entrench criminal behaviour in juveniles. It brands kids and marks them off before their peers and the rest of the community as criminals. In certain subgroups it gives them enhanced status and makes them feel good. Far from naming and shaming, it makes them heroes to their particular group.

Hylton Quail, President of the Law Society of WA, has been very vocal about this issue in the local media. He said, according to my notes —

We think naming and shaming is completely retrograde, medieval justice and allowing this sort of republication is going to encourage vigilantism.
It will allow people to print off the website, stick it up on lamp posts around the suburb wherever they want, consistent with the idea of naming and shaming.

I am also concerned that the standard set is the civil standard, so that we are looking at balance of probabilities instead of beyond reasonable doubt, and that is going to make these orders very easy to obtain. I query, Attorney General, why that is the case.

Basically, I will sum up by saying that we should be making laws based on evidence, not pandering to populism, which seems to be going on a lot with this government’s criminal government agenda. We should be passing laws that comply with our international covenants that protect human rights, and in particular children’s rights, and basically we should be passing laws that will work at the end of the day, not laws that are doomed to fail. Make no mistake, Attorney General; we have all the evidence to show that these laws are doomed to fail.

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