The principle of open justice is central to the rule of law and democracy. It creates transparency, public oversight and knowledge of how the legal system operates. But there is always a line that must be drawn.
When an accused person is charged with a crime involving a child in NSW, legislation prohibits publishing the child’s name, photo and any information that could identify them. This applies even when, like in the case of Charlise and many children who go missing, the name may have been plastered across television screens, social media and newspapers. The prohibition extends to children who are no longer living.
A senior available next of kin can give the media permission to identify a deceased child. However, this often results in an illogical situation where media go knocking on doors to obtain consent during a time of unthinkable grief. In Charlise’s case, a family member gave the media approval.
Under the Children (Criminal Proceedings) Act 1987, any child involved in criminal proceedings in NSW, whether as a defendant, witness, victim or otherwise peripherally attached (for example, a sibling), cannot be identified.
Blundell’s firm supports the rationale for prohibition but argues the “broad legislation” impinges on the principle of open justice.
“The wheels fall off our society to some extent when we keep things secret for the wrong reasons. Sunlight is the best disinfectant. Pouring sunlight on what happens in a courtroom is important so we can see if perhaps judges get it wrong or where defendants are trying to shut things up for the wrong reasons.”
Source: Balancing act: The tension between open justice and child protection – Law Society Journal