Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009 No 81

An Act to amend the Children (Criminal Proceedings) Act 1987 to make further provision for the naming of persons in connection with criminal proceedings involving children.

1 Name of Act

This Act is the Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009.

2 Commencement

This Act commences on a day to be appointed by proclamation.

Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987 No 55

[1] Section 11 Publication and broadcasting of names

Omit the section.

[2] Section 12A

Omit the section. Insert instead:

  

12A Bail applications

The provisions of section 10 and Division 3A apply to a child who appears or is brought before a court in relation to a bail application in the same way as those provisions apply to a child appearing or brought before a court in any criminal proceeding.

[3] Part 2, Division 3A

Insert after Division 3 of Part 2:

  

Division 3A Publication and broadcasting of names

15A Publishing and broadcasting of names prohibited

(1)  The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if:

(a)  the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or

(b)  the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or

(c)  the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or

(d)  the person is otherwise involved in the proceedings and was a child when so involved, or

(e)  the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed.

(2)  This section applies only to the publication or broadcast of a person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination.

(3)  The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.

(4)  This section applies to the publication or broadcast of the name of a person:

(a)  whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and

(b)  even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.

(5)  A reference in this Division to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

(6)  A reference in this Division to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.

(7)  A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section is guilty of an offence.

Maximum penalty: 500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both (in any other case).

15B Exception for official report of proceedings

This Division does not prohibit the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this Division.

15C Exception for person convicted of serious children’s indictable offence

(1)  This Division does not prohibit the publication or broadcasting of the name of a person who has been convicted of a serious children’s indictable offence if the publication or broadcasting is authorised by a court under this section.

(2)  A court that sentences a person on conviction for a serious children’s indictable offence may, by order made at the time of sentencing, authorise the publication or broadcasting of the name of the person (whether or not the person consents or concurs).

(3)  In determining whether to make such an order, a court is to have regard to the following matters:

(a)  the level of seriousness of the offence concerned,

(b)  the effect of the offence on any victim of the offence and (in the case of an offence that resulted in the death of the victim) the effect of the offence on the victim’s family,

(c)  the weight to be given to general deterrence,

(d)  the subjective features of the offender,

(e)  the offender’s prospects of rehabilitation,

(f)  such other matters as the court considers relevant having regard to the interests of justice.

(4)  A court that makes an order under this section must indicate to the person, and make a record of, its reasons for doing so.

15D Exception for publication or broadcasting with consent

(1)  This Division does not prohibit the publication or broadcasting of the name of a person:

(a)  in the case of a person who is under the age of 16 years at the time of publication or broadcasting—with the consent of the court concerned, or

(b)  in the case of a person who is of or above the age of 16 years at the time of publication or broadcasting—with the consent of the person.

(2)  A court is not to give consent under this section except with the concurrence of the child or (if the child is incapable of giving concurrence) unless the court is of the opinion that it is in the public interest that consent be given.

(3)  A child who is of or above the age of 16 years cannot give consent for the purposes of this section unless the consent is given in the presence of an Australian legal practitioner of the child’s own choosing.

15E Exception where child deceased

(1)  This Division does not prohibit the publication or broadcasting of the name of a deceased child with the consent of a senior available next of kin of the child.

(2)  A person must not, as a senior available next of kin, give consent to the publication or broadcasting of the name of a deceased child unless it appears to the person, after making such inquiries as are reasonable in the circumstances, that no other senior available next of kin objects to the publication or broadcasting of the name.

(3)  In addition, in considering whether to give consent to the publication or broadcasting of the name of a deceased child when the publication or broadcasting of the name of a brother or sister of the deceased child is prohibited under section 15A (1) (e), a senior available next of kin must:

(a)  make such inquiries as are reasonable in the circumstances to obtain the views of that brother or sister regarding the publication or broadcasting of the name of the deceased child, and

(b)  take into account the impact of such a publication or broadcasting on that brother or sister.

(4)  A senior available next of kin who is charged with, or is convicted of, an offence to which the criminal proceedings concerned relate cannot give consent, or object, to the publication or broadcasting of the name of a deceased child as referred to in this section.

(5)  If there is no senior available next of kin who can give consent to the publication or broadcasting of a deceased child’s name (whether or not as a result of subsection (4)), the court concerned can give that consent if satisfied that the public interest so requires.

(6)  In this section, senior available next of kin of a deceased child means:

(a)  a parent of the child, or

(b)  if the parents of the child are dead, cannot be found, or for some other reason cannot exercise their parental responsibilities to the child:

(i)  a person who, immediately before the death of the child, had parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child, or

(ii)  in the case of a child who was in the care of the Director-General of the Department of Human Services immediately before his or her death—the Director-General.

15F Exception for traffic offences not dealt with by Children’s Court

This Division does not apply to criminal proceedings in respect of a traffic offence if the proceedings are held before a court other than the Children’s Court.

15G Functions of court officials not affected

This Division does not apply to anything done by a person in the proper exercise of official functions as a member of staff of a registry or other office of a court in connection with the conduct and determination of criminal proceedings.

[4] Section 49 Proceedings for offences

Omit “section 11” wherever occurring. Insert instead “section 15A”.