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Burton v Director of Public Prosecutions

Burton v Director of Public Prosecutions

Case [2022] NSWCA 242 30 November 2022

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Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Burton v Director of Public Prosecutions [2022] NSWCA 242
Hearing dates: 26 July 2022
Date of orders: 30 November 2022
Decision date: 30 November 2022
Before: Bell CJ at [1]
Leeming JA at [2]
Kirk JA at [3]
Decision:
(1)   Leave to appeal is granted.
(2)   The appellants are to file a notice of appeal in terms of the draft notice of appeal within 14 days.
(3)   The appeal is dismissed.
(4)   The appellants are to pay the costs of the respondents.

Catchwords:
CONSTITUTIONAL LAW — Commonwealth Constitution — Implied freedom of political communication — Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) — Section 105 prohibits the publication or broadcasting of the name of a child only where connected to care proceedings or procedures under the State’s child welfare system — Relevant child or young person may consent to publication or broadcasting from 16 years of age onwards — Section 105 imposes a not insignificant but limited burden on the implied freedom — Purpose of s 105 of protecting privacy is legitimate — Burden on the freedom is justified — Section 105 not invalid for breach of the implied freedom
COVID-19 — no discrimination in unvaccinated appellants having to appear by audio-visual link in circumstances where they had not sought exemption from policy, and manner of appearance made no difference in any event

Legislation Cited:
Adoption Act 2000 (NSW), ss 119 and 180
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8-10, 24, 25, 27, 34, 43, 44, 45, 60, 73-79A, 86, 90A, 104A-C, 105, 120-122, 135,
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A-15G
Commonwealth Constitution
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 45

Cases Cited:
Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45
Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43
Burton v Director of Public Prosecutions (NSW) (2021) 361 FLR 432; [2021] NSWSC 1230
Burton v Secretary, Dept of Communities and Justice [2019] NSWCA 21
Burton v Secretary, Dept of Communities and Justice [2020] NSWCA 68
Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23
Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34
Palmer v Western Australia (2021) 95 ALJR 229; [2021] HCA 5
Re J [2014] 1 FLR 523; [2013] EWHC 2694 (Fam)
Russell v Russell (1976) 134 CLR 495; [1976] HCA 23
Scott v Scott

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burton v Director of Public Prosecutions

Details

AGLC: Burton v Director of Public Prosecutions [2022] NSWCA 242
Case: [2022] NSWCA 242
Decision Date: 30 November 2022

CaseChat Overview and Summary

The case of *Burton v Director of Public Prosecutions* concerned an appeal to the Court of Appeal of New South Wales regarding the constitutional validity of section 105 of the *Children and Young Persons (Care and Protection) Act 1998* (NSW). The appellants challenged this provision, which restricts the publication or broadcasting of a child's name in connection with care proceedings or procedures under the State's child welfare system, arguing it infringed the implied freedom of political communication guaranteed by the Commonwealth Constitution. The appellants also raised issues concerning discrimination related to their appearance by audio-visual link due to their unvaccinated status.

The central legal issue before the Court of Appeal was whether section 105 of the *Children and Young Persons (Care and Protection) Act 1998* (NSW) was invalid by reason of impermissibly burdening the implied freedom of political communication. The Court was required to assess whether the restriction imposed by the section on the publication of a child's name was reasonably appropriate and adapted to serve a legitimate purpose. Additionally, the Court considered whether the appellants had been discriminated against by being required to appear by audio-visual link, given their unvaccinated status.

The Court of Appeal reasoned that section 105 of the Act, while imposing a "not insignificant but limited burden" on the implied freedom of political communication, was justified. The Court found that the purpose of protecting the privacy of children involved in care proceedings was a legitimate one. The restriction was considered reasonably appropriate and adapted to achieve this purpose, particularly as a child aged 16 or over could consent to publication. Regarding the COVID-19 related issue, the Court found no discrimination, noting that the appellants had not sought an exemption from the relevant policy and that the manner of their appearance had no bearing on the outcome.

Ultimately, the Court of Appeal granted leave to appeal, ordered the appellants to file a notice of appeal within 14 days, but dismissed the appeal. The appellants were also ordered to pay the costs of the respondents.

Orders

Orders of the court

(1) Leave to appeal is granted.

(2) The appellants are to file a notice of appeal in terms of the draft notice of appeal within 14 days.

(3) The appeal is dismissed.

(4) The appellants are to pay the costs of the respondents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Burton v Director of Public Prosecutions [2022] NSWCA 242

Most Recent Citation

Burton v The King [2024] NSWCCA 213

Cases Citing This Decision

Lees v State of New South Wales [2025] NSWSC 1209
Citation 1

…rown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43 Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242 Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224 Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40 Clubb v…
Smith v Blanch [2025] NSWCA 188
Citation 2 (Para 1)

…[1992] HCA 45, referred to. Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43; Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242, applied.…
Burton v The King [2024] NSWCCA 213
Citation 3 (Para 67)

…ment of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7; Burton v Director of Public Prosecutions (2022) 110 NSWLR 145; [2022] NSWCA 242; Burton v Babb [2023] NSWDC 103; and Burton v Babb [2023] NSWCA 242.…
Burton v Director of Public Prosecutions [2024] NSWSC 863
Citation 4 (Para 6)

…on v Secretary, Department of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7; Burton v Director of Public Prosecutions [2022] NSWCA 242; Burton v Babb [2023] NSWDC 103; Burton v Babb [2023] NSWCA 242.…
LSA v State of Queensland [2024] QSC 102
Citation 5

…Refineries (Qld) Pty Ltd v Stavar (2009 75 NSWLR 649, considered Ferguson v State of Queensland [2007] QSC 322, cited Fuller-Wilson v New South Wales (2018) Aust Torts Rep ¶82-413, considered Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, applied Hill v Chief Constable of West Yorkshire [1989] AC 53m cited H…
Kvelde v State of New South Wales (No 2) [2024] NSWSC 196
Citation 6

…td v Liddiard (No 2) [2009] NSWCA 304 Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 242; (2022) 110 NSWLR 145 Cassaniti v Katavic (No 3) [2023] NSWCA 247 Chen v Chan [2009] VSCA 233 Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 Dodds Family Invest…
Stratton v State of New South Wales; Pandolfi v Minister for Health and Medical Research [2023] NSWSC 396
Citation 7 (Para 4)

…e refinement in a series of subsequent cases, involves the following inquiries, as set out by Kirk JA in Burton v Director of Public Prosecutions [2022] NSWCA 242 (“ Burton ”) at [16] (Bell CJ and Leeming JA agreeing):…
Tey v State of New South Wales; Altakrity v State of New South Wales [2023] NSWSC 266
Citation 8 (Para 49)

…w which infringes the implied freedom may, and should, be assessed by reference to principles described as “structured proportionality”. [30] 29. [2022] NSWCA 242 at [14]-[16] (Kirk JA, Bell CJ and Leeming JA agreeing). 30. Burton at [15].…
Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38
Citation 9 (Para 48)

…that this one has. But the review here arises in a very particular context. As this Court stated recently in Burton v Director of Public Prosecutions [2022] NSWCA 242 at [52]:…

See all citing cases →

Cases Cited

Farm Transparency International Ltd v New South Wales [2022] HCA 23
Citation 1 (Para 15)

…34 at [2] per French CJ, Kiefel, Bell and Keane JJ; and, most recently, Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23 at [29] per Kiefel CJ and Keane J, [250] per Edelman J, [269] per Steward J, [271] per Gleeson J.…
Palmer v Western Australia [2021] HCA 31
Citation 2 (Para 17)

…asons for adopting a structured proportionality approach were discussed in an illuminating way by Kiefel CJ and Keane J in Palmer v Western Australia (2021) 95 ALJR 229; [2021] HCA 5 at [54]-[56], in the context of applying that approach to s 92 of the Constitution. As that discussion recognises, structured proportio…
Burton v Director of Public Prosecutions (NSW) [2021] NSWSC 1230
Citation 3 (Para 9)

…ourt proceedings such that the Court could address the issue of validity directly: Burton v Director of Public Prosecutions (NSW) (2021) 361 FLR 432; [2021] NSWSC 1230 at [7] and [22]. Button J held that the provision was not invalid for breach of the implied constitutional freedom, and dismissed the appellants’ sum…
Palmer v Western Australia [2021] HCA 5
Citation 4 (Para 17)

…structured proportionality approach were discussed in an illuminating way by Kiefel CJ and Keane J in Palmer v Western Australia (2021) 95 ALJR 229; [2021] HCA 5 at [54]-[56], in the context of applying that approach to s 92 of the Constitution. As that discussion recognises, structured proportionality is a to…
Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68
Citation 5 (Para 12)

…tion of powers doctrine as found in Chapter III of the Commonwealth Constitution”. He cited Burton v Secretary, Dept of Communities and Justice [2020] NSWCA 68 at [18], in which this Court rejected a submission made by him that to construe something in a particular way would contravene “the separation of powers”.…
Comcare v Banerji [2019] HCA 23
Citation 6 (Para 67)

…ught to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom”: cf Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 at [38].…
Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21
Citation 7 (Para 49)

…ich the purpose of s 105, and Ch 6 in which it is contained, had been discussed: Smith CA , [48]; Burton v Secretary, Dept of Communities and Justice [2019] NSWCA 21, [4] and [24]. Any difference between the statements made there, and the identification of purpose by the primary judge here (at [91]-[98]), is at mo…
Brown v Tasmania [2017] HCA 43
Citation 8 (Para 19)

…xamples of the statute's practical effect, and therefore of the burden the statute may have on the freedom”: Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [90] per Kiefel CJ, Bell and Keane JJ.…
Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206
Citation 9 (Para 30)

…rvices v Smith [2017] NSWSC 6 at [39]-[40] ( Smith SC ) per Brereton J; Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 ( Smith CA ) at [46]-[49] per Gleeson JA, for the Court. There was a suggestion by the amici that this construction was wrong. In my view the constru…
Lazarus v Independent Commission Against Corruption [2017] NSWCA 37
Citation 10

…Even if the separation of powers found in Chapter III of the Commonwealth Constitution applied at the State level (which it does not: see Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [106]), there is no difficulty in the Executive altering the title of an office holder and deeming references to the former offic…
Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6
Citation 11 (Para 30)

…pending, contemplated or completed proceedings, non-court proceedings or a relevant report: Secretary, Dept of Family and Community Services v Smith [2017] NSWSC 6 at [39]-[40] ( Smith SC ) per Brereton J; Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 ( Smith CA )…
McCloy v New South Wales [2015] HCA 34
Citation 12 (Para 15)

…ajority of the High Court has adopted the “structured proportionality” test to fulfil this need: see McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 at [2] per French CJ, Kiefel, Bell and Keane JJ; and, most recently, Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA…
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
Citation 13 (Para 35)

…construction is consistent with the principles of construction referred to in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [22]-[25] and [39]. The construction is consistent with the purpose of s 105(3)(b)(ii), which recognises that there comes a point where the autonomy of th…
Unions NSW v New South Wales [2013] HCA 58
Citation 14 (Para 14)

…espect to communication on matters that might be seen predominantly to be the concern of the States: Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58 ( Unions NSW (No 1) ) at [17]-[26].…
Hogan v Hinch [2011] HCA 4
Citation 15 (Para 38)

…There may be occasions where “identity is directly relevant to a point to be made about public administration”: Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [50] per French CJ. The use of particular examples can be potent in political discussion: note eg Brown v Tasmania at [117], [191]-[193], [240], [264]…
Kirk v Industrial Court of New South Wales [2010] HCA 1
Citation 16 (Para 13)

…t same separation of powers that is required at a federal level by Ch III of the Constitution”: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [69]. The suggestion that the Court was saying that in some way this Court “does not recognise” and give effect to Ch III of the Constitution, if that…
Lange v Australian Broadcasting Corporation [1997] HCA 25
Citation 17 (Para 14)

…legislative power protecting the freedom to discuss government and political matters: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25. That freedom must not be unjustifiably burdened. The principle limits State legislative powers, including with respect to communication on matters t…
Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45
Citation 18 (Para 15)

…h infringement of the freedom: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 142-144, 150-151, 169, 217-218 and 234-235; [1992] HCA 45. That has resulted in the need to articulate some test or guide for what types of infringement are permissible. An ongoing majority of the High Court…
Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1
Citation 19 (Para 15)

…tives. Since the first recognition of the implied freedom, the High Court has recognised the need to allow for some such infringement of the freedom: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 142-144, 150-151, 169, 217-218 and 234-235; [1992] HCA 45. That has resulted in the need to articulate some test or guide for what typ…
Russell v Russell [1976] HCA 23
Citation 20 (Para 52)

…he ward or lunatic”: Scott v Scott [1913] AC 417 at 437 per Viscount Haldane LC; see further Russell v Russell (1976) 134 CLR 495 at 532-533; [1976] HCA 23, Hogan v Hinch at [21] and [88]. Implicit in that notion is recognition of the harm that might follow to the persons concerned if they were publicly identifi…
[1913] AC 417 [1913] AC 417
Citation 21 (Para 52)

…or lunatic”, and the broad principle of open justice “yields to the paramount duty, which is the care of the ward or lunatic”: Scott v Scott [1913] AC 417 at 437 per Viscount Haldane LC; see further Russell v Russell (1976) 134 CLR 495 at 532-533; [1976] HCA 23, Hogan v Hinch at [21] and [88]. Implicit in that…

Legislation Cited

Children and Young Persons (Care and Protection) Act 1998 (NSW) 3, 8
3 mentions (from Para 3)
Adoption Act 2000 (NSW) 119, 180
2 mentions (from Para 53)
Children (Criminal Proceedings) Act 1987 (NSW) 15A
2 mentions (from Para 53)
Constitution of Australia (Cth)
1 mention (from Para 12)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention (from Para 60)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) 45
1 mention (from Para 53)
Supreme Court Act 1970 (NSW) 101(2)(r)
1 mention (from Para 5)

Medium Neutral Citation:	Burton v Director of Public Prosecutions [2022] NSWCA 242
Hearing dates:	26 July 2022
Date of orders:	30 November 2022
Decision date:	30 November 2022
Before:	Bell CJ at [1] Leeming JA at [2] Kirk JA at [3]
Decision:	(1) Leave to appeal is granted. (2) The appellants are to file a notice of appeal in terms of the draft notice of appeal within 14 days. (3) The appeal is dismissed. (4) The appellants are to pay the costs of the respondents.
Catchwords:	CONSTITUTIONAL LAW — Commonwealth Constitution — Implied freedom of political communication — Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) — Section 105 prohibits the publication or broadcasting of the name of a child only where connected to care proceedings or procedures under the State’s child welfare system — Relevant child or young person may consent to publication or broadcasting from 16 years of age onwards — Section 105 imposes a not insignificant but limited burden on the implied freedom — Purpose of s 105 of protecting privacy is legitimate — Burden on the freedom is justified — Section 105 not invalid for breach of the implied freedom COVID-19 — no discrimination in unvaccinated appellants having to appear by audio-visual link in circumstances where they had not sought exemption from policy, and manner of appearance made no difference in any event
Legislation Cited:	Adoption Act 2000 (NSW), ss 119 and 180 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8-10, 24, 25, 27, 34, 43, 44, 45, 60, 73-79A, 86, 90A, 104A-C, 105, 120-122, 135, Children (Criminal Proceedings) Act 1987 (NSW), ss 15A-15G Commonwealth Constitution Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 45
Cases Cited:	Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 Burton v Director of Public Prosecutions (NSW) (2021) 361 FLR 432; [2021] NSWSC 1230 Burton v Secretary, Dept of Communities and Justice [2019] NSWCA 21 Burton v Secretary, Dept of Communities and Justice [2020] NSWCA 68 Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 Palmer v Western Australia (2021) 95 ALJR 229; [2021] HCA 5 Re J [2014] 1 FLR 523; [2013] EWHC 2694 (Fam) Russell v Russell (1976) 134 CLR 495; [1976] HCA 23 Scott v Scott