A NSW judge has extraordinarily called for the employment of the Director of Public Prosecutions (ODPP) to be reviewed, after identifying information about a 17-year-old Indigenous boy was provided to media organisations.
Appearing in court on serious charges in October 2024, the young man was permitted by Judge Penelope Wass to perform an Acknowledgement of Country.
Later that month, those events and Judge Wass became the subject of segments aired by 2GB radio hosts Ray Hadley and Ben Fordham, after a screenshot of sensitive information, including the young person's name, was provided by an ODPP media officer.
The shock jocks mischaracterised the ceremony as a Welcome to Country, and were extremely critical of Judge Wass' decision.
The Director of Public Prosecutions, Sally Dowling SC, is alleged by Judge Wass to have directed the media officer to make the disclosure.
Ms Dowling has stringently denied the allegations, which are contained in a submission by Judge Wass to a NSW parliamentary inquiry into privacy laws for children in the youth justice system, prompted by the disclosures.
"The broader effects of the disclosure on [the youth] [and] on public confidence in the administration of justice (particularly in relation to Indigenous sentencing initiatives) ... raise systemic issues that the Committee may consider," reads part of Judge Wass' submission.
"The Committee may also consider whether it is appropriate to refer the Senior Officers [of the ODPP] for removal from office for incompetence or misbehaviour."
Criticism of laws allowing 'jigsaw identification'
Greens MP Sue Higginson, deputy chair of the inquiry, said there was an "urgent" need to reform the identity protections.
“The circumstances that have led to the identification of a First Nations child, due to an unauthorised disclosure, also known as a 'leak' from the ODPP to 2GB, are incredibly confronting and indicate a problem that needs to be fixed,” said Ms Higginson, also the Greens' justice spokesperson.
Section 15A of the Children (Criminal Proceedings) Act 1987 prohibits the publishing and broadcasting of young people's names.
2GB did not disclose the young man's name during the segments, nor did subsequent articles appearing on the Daily Mail and Sky News websites.
However, due to the specifics of the case, there were concerns that the young defendant could be identified by inference.
A police investigation into the leak did not result in charges being laid.
Ms Higginson said the episode revealed a gap in the legislation.
“Despite laws preventing children from being identified, the public is routinely being made aware of circumstances that can be pieced together to identify a child inadvertently," she said.
"This is referred to as ‘jigsaw identification’ and it particularly happens in regional areas with close-knit communities who have intimate knowledge of a child’s circumstances.
"It’s clear we need stronger protections in law to make absolutely clear to police and prosecutors that this trend is unacceptable."
At the inquiry at NSW parliament house on Friday, committee members attempted to ascertain details around the leak, including probing the allegation there was a direction from the senior levels of the ODPP.
Appearing before the committee, Ms Dowling said the line of questioning was "not an appropriate use of this committee's function", and criticised the late provision of Judge Wass' submission.
"The committee's failure to provide the submission to me and [ODPP Solicitor for Public Prosecutions Craig] Hyland is a gross denial of procedural fairness," Ms Dowling told the inquiry on Friday.
"In fact, I would go so far as to call it disgraceful."
Ms Dowling noted there had been a police investigation, and also that the ODPP's media office had received extra training and that an officer involved had been 'counseled'.
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