Burton v Director of Public Prosecutions

[2022] NSWCA 242

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 [1913] AC 417

Secretary, Dept of Family and Community Services v Smith [2017] NSWSC 6

Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58

Category:

Principal judgment

Parties:

Paul Robert Burton (First applicant)
Andrew Katelaris (Second applicant)
Director Public Prosecutions (First respondent)
Local Court of New South Wales (Second respondent)
Attorney-General of New South Wales (Third respondent)

Representation:

Counsel:

First Applicant (Self-represented)
Second Applicant (Self-represented)
M Sexton SC / M Adams (Third respondent)
M Seymour / R Size (Amici curiae)

Solicitors:

Crown Solicitor’s Office of New South Wales (Third respondent)

File Number(s):

2021/304575

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Burton v Director of Public Prosecutions (NSW) [2021] NSWSC 1230

Date of Decision:

30 September 2021

Before:

Button J

File Number(s):

2021/6362

HEADNOTE

[This headnote is not to be read as part of the judgment]

Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) prohibits the publication or broadcasting of the name of a child who is connected to care proceedings or procedures under the State’s child welfare system, as governed by the Act. Mr Paul Burton and Mr Andrew Katelaris have been charged with contravention of the section. The charges involve conduct occurring between 31 May and 14 July 2017. They brought proceedings in the Supreme Court alleging that s 105, as it stood during that period, was invalid for impermissibly burdening the implied constitutional freedom of communication on political and government matters. That argument was rejected by Button J. Mr Burton and Mr Katelaris sought to appeal that decision.

The Court (per Kirk JA, Bell CJ and Leeming JA agreeing) granted leave to appeal but dismissed the appeal with costs, holding:

1. The appellants complained that they were discriminated against because, being unvaccinated against Covid-19, they were required by the Court’s then policy to appear by audio-visual link unless granted an exemption. The complaint was without merit. The appellants had not applied for an exemption. In any case, appearing in that manner made no difference to the Court’s understanding or determination of the issues: at [11].

2. There is implied in the Constitution a limitation on (at least) legislative power protecting the freedom to discuss government and political matters. That freedom must not be unjustifiably burdened. The principle limits State legislative powers, including with respect to communication on matters that might be seen predominantly to be the concern of the States: at [14].

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25, Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58 at [17]-[26], applied.

3. The prohibition in s 105 only applies when there is some connection in the publication or broadcast between identification of the child or young person on the one hand, and on the other pending, contemplated or completed proceedings, non-court proceedings or a relevant report: at [30].

Secretary, Dept of Family and Community Services v Smith [2017] NSWSC 6 at [39]-[40], Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [46]-[49], applied.

4. Despite the apparent anomaly on the face of the text of s 105, it is implicit that the ability of a relevant child or young person to consent to publication or broadcast does not cease upon them turning 18: at [34].

Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [22]-[25] and [39], applied.

5. The constitutional freedom is burdened insofar as people are prohibited from publicly protesting or discussing the removal of particular children by governmental action: at [41]. That burden is not insignificant, but is limited. It is only directed to one particular topic of governmental action. There are means by which consent for identification may be given. And the prohibition is content neutral in the sense that it does not attack criticism any more than it targets praise of government policies or action: at [41]-[48].

6. The purpose of the prohibition in s 105 is legitimate in the relevant sense: at [49]-[55]. The long-recognised purpose of protecting the privacy of children and young persons involved in the State care system does not conflict in any way with the maintenance of the constitutionally prescribed system of representative government: at [54].

7. Section 105 is a suitable means to achieve the identified purpose, in the sense of having a rational connection to that purpose: at [56].

8. The burden is necessary, in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom. Protecting the privacy of children and young people on an ad hoc, case by case basis, or through pseudonyms, would not achieve the identified purpose to the same extent: at [61]-[63]. Arguments based on ss 15A-15G of the Children (Criminal Proceedings) Act 1987 (NSW) did not assist the appellants: at [64].

9. Section 105 is adequate in its balance in that it is not unduly burdensome on the freedom, taking account of the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom: at [67]-[71].

10. In the result, the burden on the implied freedom of communication on political and government matters is justified. Section 105 is not invalid for breach of the implied freedom: at [72].

Judgment

1. BELL CJ: I have had the benefit of reading the reasons for judgment of Kirk JA. I agree with them and the orders his Honour proposes.

2. LEEMING JA: I agree with Kirk JA.

3. KIRK JA: Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act) prohibits the publication or broadcasting of the name of a child who is connected to care proceedings or procedures under the State’s child welfare system, as governed by the Act. Mr Paul Burton and Mr Andrew Katelaris have been charged with contravention of the section. The charges involve conduct occurring between 31 May 2017 and 14 July 2017. They brought proceedings in the Supreme Court alleging that s 105, as it stood during that period, was invalid for impermissibly burdening the implied constitutional freedom of communication on political and government matters. That argument was rejected by Button J.

4. Mr Burton and Mr Katelaris are self-represented. The Attorney-General of New South Wales appeared in this Court and below in support of the validity of s 105. Mr Mark Seymour and Mr Robert Size, barristers, jointly appeared as amici curiae to assist this Court by developing the case that might be made for invalidity. Their submissions were useful and their assistance is appreciated.

5. Leave to appeal is required: Supreme Court Act 1970 (NSW), s 101(2)(r). The question of whether s 105 of the Act impermissibly burdens the implied freedom raises an issue of principle. Leave to appeal should be granted. As for the substance of the matter, s 105 imposes no impermissible burden on the protected freedom. Button J was correct to reject the appellants’ challenge.

6. In this judgment, I first outline the background to the challenge, then summarise the constitutional principle at issue, address s 105 and its construction, before testing the provision against the constitutional limitation.

Background

7. Mr Burton has been charged with four contraventions of s 105(2) of the Act in relation to posts and videos published on Facebook in the period from 31 May 2017 and 14 July 2017. Those posts are said to have identified a child with respect to whom proceedings under the Act had been brought before the Children’s Court of New South Wales. Mr Katelaris has been charged with one contravention of the same provision, relating to the same child, with respect to a Facebook post allegedly published in the same period. It seems the child in question had been removed from their family in circumstances which attracted some attention in certain parts of the community.

8. The appellants were charged with these offences, amongst others, on 21 December 2017. The appellants elected to proceed on indictment, such that the proceedings in the Local Court became proceedings for the purposes of committal for trial in the District Court. The appellants pleaded not guilty and sought to challenge the constitutional validity of s 105 within the committal proceedings. On 23 November 2020 Magistrate Maiden held that s 105 of the Act was not invalid.

9. The appellants brought proceedings in the Supreme Court seeking relief in the nature of certiorari, mandamus and a declaration to the effect that s 105 is invalid. The Attorney raised issues as to the characterisation of the power that had been exercised by the Local Court, given that it was undertaking committal proceedings. By the end of the hearing below, however, it was sensibly accepted that it was not necessary to determine those issues given that a declaration of invalidity had been sought in the Supreme Court 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’ summons, ordering them to pay the costs of the Director of Public Prosecutions (who had been represented below).

10. In their draft notice of appeal the appellants assert that the primary judge erred in “finding that section 105 is constitutionally valid”, and in failing to declare that the section was invalid. The Director of Public Prosecutions filed a submitting appearance in the appeal.

11. The main argument in this Court concerned whether or not s 105(1) and (2) were invalid for inconsistency with the implied freedom. However the appellants raised two other issues. The first, according to Mr Burton (whose submissions were adopted by Mr Katelaris), “was the current Covid situation, where I feel I’m being discriminated against unconstitutionally, and I can’t even appear in person”. It appears that this was a complaint about the fact that under the Court policy in operation at the time this appeal was heard, persons who had not received at least a double vaccination against Covid-19 were not permitted into the Court building unless they had obtained an exemption. The appellants appeared by video-link, as have countless others in courts around the country and the world in the course of the Covid pandemic. That mode of appearance made no difference to this Court’s understanding or determination of the issues. Further, the appellants were given the opportunity to apply for an exemption from the policy but made no such application. This point is without merit.

12. Secondly, Mr Burton claimed that this Court has “already stated … that the NSW Supreme Court does not recognise the separation 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”. The Court said:

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 office to be references to the renamed office.

13. The point the Court was making about Ch III was to refer to the entirely orthodox understanding that, to quote the High Court, “there is not, in the States' constitutional arrangements, that 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 is what Mr Burton meant, is without foundation.

The constitutional principle

14. The principles relating to the constitutional limitation are well-established. There is implied in the Constitution a limitation on (at least) 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 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].

15. Like many constitutional requirements in Australia and elsewhere, the freedom is not absolute. It may be curtailed by laws which are directed to achieving competing objectives. 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 types of infringement are permissible. An ongoing majority 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 23 at [29] per Kiefel CJ and Keane J, [250] per Edelman J, [269] per Steward J, [271] per Gleeson J.

16. The Lange test, as understood to incorporate structured proportionality, involves addressing the following questions:

1. Does the impugned law effectively burden the freedom in its terms, operation or effect? If not, the inquiry ends.

2. If so, is the purpose of the law legitimate, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative government? If the purpose is not legitimate, the measure is invalid. If it is legitimate, it is necessary to address the next question.

3. Can the burden on the freedom imposed by the law be characterised as justifiable? That involves testing the law by way of a structured proportionality analysis, which raises the following issues:

1. Is the law suitable to achievement of the purpose, in the sense of having a rational connection to that purpose?

2. Is the burden on the freedom necessary, in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom?

3. Is the law adequate in its balance, that is to say, not unduly burdensome on the freedom taking account of the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom?

17. The reasons 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 proportionality is a tool adopted to assist in testing whether the relevant constitutional guarantee is impermissibly infringed by a law, that is to say, whether or not any infringement is justified. It is not the only tool that could have been adopted. It is an approach meant to assist legislators, parties and judges to assess the issues that arise when testing a law, and in so doing to promote transparency of judicial reasoning.

18. Applying the test is not a purely mechanical exercise, and a clear focus on the constitutional guarantee at issue should be retained. That that is so is reinforced by the fact that often a particular aspect of a challenge to or justification for a law can be expressed in different and overlapping ways. For example, a finding that a law is not rationally directed to achieving the identified legitimate end may suggest that in fact the purpose of the law should be characterised in a different way, such that in truth the purpose of the law was not legitimate. Further, often a point critiquing the law can be raised at more than one level of the structured proportionality analysis, as the discussion below relating to s 105 shows.

19. In assessing the justifiability of any infringement on the constitutionally protected freedom it is necessary to identify the nature and extent of the burden. The freedom is not a personal right. For that reason the question of the burden imposed on the constitutional freedom is to be assessed by reference to the burden imposed on the protected freedom as a whole, rather than by reference to individual cases: eg Unions NSW (No 1) at [30], [36], [119] and [166]. That being said, evidence of the operation of the impugned law in individual cases “may provide useful examples 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.

Section 105, in context

20. In order to construe s 105, and thus to assess the extent to which it imposes a burden on the constitutional freedom, it is important to understand something of its statutory context as it stood in the relevant period of 31 May to 14 July 2017. Some minor amendments to the Act commenced in that period but they are not material for current purposes.

21. As the long title of the Act states, it is “[a]n Act to provide for the care and protection of, and the provision of services to, children and young persons”. Section 8 stated that the objects of the Act are:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

22. The Act seeks to advance those objects in a range of ways. A child is defined as someone under 16 years of age, and a young person is a person aged at least 16 but under 18 years of age: s 3(1). Without seeking to be exhaustive, the following aspects of the Act illustrate its nature.

23. Chapter 3 of the Act deals with requests for assistance being made to the relevant Department of the State, along with reports being made with respect to a child or young person considered to be at risk of significant harm.

24. Chapter 4 is headed “Children and young persons in need of care and protection”. Within it, s 34(1) provides that “[i]f the Secretary forms the opinion, on reasonable grounds, that a child or young person is in need of care and protection, the Secretary is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person”.

25. Chapter 5 is headed “Children’s Court proceedings”. Within that chapter, s 43 gives power to the Secretary and to police officers to remove a child or young person from a place of risk or other places if certain criteria are met. The Secretary may also assume care of a child in a particular place without removing them: s 44. In either case, the Secretary must make a “care application” to the Children’s Court within a short period of time: s 45. Part 2 of the chapter deals with care applications. In determining care applications the Children’s Court is empowered to make a wide range of orders with respect to the care of and responsibility for the child: see especially ss 73-79A, 86 and 90A. Amongst other things, the Court can allocate parental responsibility for a child to one parent to the exclusion of another, or to the Minister, or to another suitable person: s 79(1).

26. Chapter 8 deals with “out-of-home care”, which means residential care and control of a child or young person by a person other than a parent, and at a place other than the usual home: s 135(1). Such care may be provided in a range of circumstances, including pursuant to a care order made by the Children’s Court.

27. Chapter 6 is headed “Children’s Court procedure”. That chapter includes s 105. In the relevant period that section provided as follows:

105 Publication of names and identifying information

(1) The name of a child or young person:

(a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or

(a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or

(b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or

(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or

(d) who is the subject of a report under section 24, 25, 27, 120, 121 or 122,

must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.

(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of the child or young person concerned until:

(a) the child or young person attains the age of 25 years, or

(b) the child or young person dies,

whichever occurs first.

(1B) This section applies to the publication or broadcast of a child or young 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.

(1C) The publication of information to a 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.

(2) A person who publishes or broadcasts the name of a child or young person in contravention of subsection (1) is guilty of an offence.

Maximum penalty: 200 penalty units or imprisonment for a period not exceeding 2 years, or both, in the case of an individual or 2,000 penalty units in the case of a corporation.

Note—

An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.

(3) Subsection (1) does not prohibit:

(a) the publication or broadcasting of an official report of the proceedings of the Children’s Court that includes the name of a child or young person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or

(b) the publication or broadcasting of the name of a child or young person:

(i) in the case of a child—with the consent of the Children’s Court, or

(ii) in the case of a young person—with the consent of the young person, or

(iii) in the case of a child or young person who is under the parental responsibility of the Minister—with the consent of the Secretary if the Secretary is of the opinion that the publication or broadcasting may be seen to be to the benefit of the child or young person, or

(iv) in any case—if the child or young person has died.

(4) For the purposes of this section, a reference to the name of a child or young person includes a reference to any information, picture or other material:

(a) that identifies the child or young person, or

(b) that is likely to lead to the identification of the child or young person.

(5) The offence created by this section is an offence of strict liability.

(6) This section does not apply in relation to criminal proceedings.

Note—

See section 15A of the Children (Criminal Proceedings) Act 1987.

28. The term “non-court proceedings”, as used in s 105(1), is defined in s 3(1) to mean “any aspect of care proceedings that is not conducted before the Children’s Court”, and includes counselling and alternative dispute resolution procedures. The term “care proceedings” is defined in s 60 to mean proceedings under Ch 5. The notion of a child or young person “who is the subject of a report under section 24, 25, 27, 120, 121 or 122” relates to reports made to the Secretary in circumstances where a person reasonably considers that there is a significant risk of harm to the child or young person or where there is a concern relating to being homeless.

29. The notion of publication to the public or a section of the public indicates that private communications between individuals is not encompassed: note analogously Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 378-9. It is not necessary here to seek to delineate that line more clearly. But it is evident that, for instance, communications within a family or to a legal representative would not be prohibited by the provision.

30. Read literally, the section might be thought to provide that to publish or broadcast the name of a relevant child or young person (ie one falling within the identified categories) is prohibited regardless of the context in which that occurred. That construction would mean that, for example, no academic or sporting achievement of a relevant child or young person could be acknowledged publicly, nor could a friend or family member send a public social media message expressing birthday good wishes to the child or young person. There is no sensible reason that such a construction could have been intended by Parliament. Thus it has been held that the prohibition only applies when there is some connection in the publication or broadcast between identification of the child or young person on the one hand, and on the other 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) 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 construction is plainly right. The amici noted that in 2006 the provision was amended so as expressly to apply after the duration of relevant proceedings. The section’s temporal reach is immaterial to whether the publication or broadcast is connected to proceedings (etc). The issues are distinct.

31. The prohibition does not apply to the publication or broadcasting of an “official report” of the proceedings of the Children’s Court: s 105(3)(a). The Attorney submitted that that term should not be understood to encompass someone reporting what has happened within a court proceeding. That construction is consistent with the provisions which precede it, which provide that at any time while the Children’s Court is hearing proceedings with respect to a child or young person:

1. the Court may direct any person (other than the child or young person) to leave the place where the proceedings are being heard (s 104A(1));

2. “any person who is not directly interested in the proceedings must, unless the Children’s Court otherwise directs, be excluded from the place where the proceedings are being heard” (s 104B);

3. “any person who is engaged in preparing a report of the proceedings for dissemination through a public news medium is, unless the Children’s Court otherwise directs, entitled to enter and remain in the place where the proceedings are being heard” (s 104C).

32. The reference to “a report” in s 104C, which extends to media reports, stands in contrast to the language of “official report” in s 105(3)(a).

33. Section 105(3)(b) provides that the prohibition does not apply if the Children’s Court consents as regards a child, or the young person consents, or the Secretary consents as regards a child or young person where the Minister has parental responsibility (and the Secretary is of the opinion that it is in the person’s interests to do so). These are expressed as alternatives. A young person can consent even if they are under the parental responsibility of the Minister – assuming, at least, that they have capacity to do so.

34. There is an apparent anomaly on the face of the text, in that it does not say in terms that a person who had been a relevant child or young person but is now over 18 years old but under 25 years old (when the prohibition ceases) may consent to the publication or broadcast. It is necessary to address this issue here as it goes to the extent to which the implied freedom is burdened and the justification for that burden. There is no logic or apparent purpose in a young person losing the ability to consent upon turning 18. It would also be incongruent with other aspects of the Act. For example, it is notable that s 10(1) of the Act identifies certain responsibilities of the Secretary which exist in order to “ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life”. It makes little sense to recognise the interests of the child or young person in being able to participate in decisions affecting them up until the age of 18, but not thereafter, despite the Act imposing ongoing restrictions in connection with that person.

35. In this context it may be taken to be implicit that the ability of a young person to consent does not cease upon them turning 18. The words “with the consent of the young person” in s 105(3)(b)(ii) can be taken to encompass the notion of “including after they cease to be a young person”. Adopting such a 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 the person in question enables them to make their own decisions on whether or not their name may be published or broadcast despite the prohibition. Given this context, and the anomaly that arises, the drafter must have inadvertently overlooked the eventuality in question. It is possible to identify words that the legislature would have included in the provision to achieve that result. The text involved is consistent with the wording otherwise adopted by the drafter.

36. In summary, the section creates a strict liability offence prohibiting publication or broadcast (directed to the public or a section of the public in a form accessible in this State) of the name, picture or identifying information of a child or young person who is involved (or reasonably likely to be involved) in proceedings in the Children’s Court or in related dispute resolution procedures, or who is the subject of a relevant report related to their welfare, and where there is a connection in the publication or broadcast between the identification of the child and the relevant proceeding, procedure or report. The prohibition applies until the child or young person is 25 years old, unless they die first. There are various ways that consent can be given to publication or broadcast, including by the person themselves from when they reach the age of 16.

37. For completeness it should be noted that the appellants sought to make something of the fact that s 105 was amended with effect from 4 February 2019 to include subsection (1AA), which is an additional prohibition relating to identifying a child or young person “as being or having been under the parental responsibility of the Minister or in out-of-home care”. That prohibition was not in the Act at the time of the appellants’ alleged offences, and they have not been charged under that subsection. It is not relevant to the issues here.

Resolution of the constitutional challenge to s 105

An effective burden

38. The primary judge found that there was an effective burden on the implied freedom, but that it was a relatively slight one (at [71]-[85]). There is a burden. Section 105 prevents people from identifying children who have been the subject of relevant proceedings, action or reports. 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]. Thus the force of political points may be undermined by the inability to point to particular cases, at least in ways which are likely to identify a particular child or young person.

39. More generally, although the constitutional limitation is commonly referred to as the “freedom of political communication”, in Lange the High Court spoke of “that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors”: see at 560, emphasis added; note also eg Unions NSW (No 1) at [20]. In Lange at 561 the Court said:

Similarly, those provisions which prescribe the system of responsible government necessarily imply a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal Parliament. Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.

40. It is apparent from Unions NSW (No 1) at [17]-[26] that the freedom extends to discussion of executive action by State, Territory and local governments.

41. The constitutional freedom is burdened insofar as people are prohibited from publicly protesting or discussing the removal of particular children by governmental action. That is not to suggest that such people have a personal right, protected by the Constitution, to do so. Rather, it recognises that communication on all governmental action is subject of the constitutional freedom.

42. The appellants also raised an issue about persons wanting to protest the treatment of children who have been removed – such as, for example, raising concerns about the sexual abuse of foster children. The amici noted that it is significant that s 105 extends to the indirect identification of children. They suggested that this meant that a parent of a removed child could not raise such a protest because to do so would be to identify their child. The appellants submitted that the section “effectively silenc[ed]” parents or caregivers of removed children. That is an overstatement. In such cases it would be a question of fact whether or not the publication or broadcast identifies or is likely to lead to the identification of the child or young person. It may be accepted that, at the least, the parent or caregiver concerned would have to be careful in how they articulated any such public criticism or discussion.

43. The appellants relied in the Court below on various affidavits illustrating the concerns that parents of removed children, or people who had been removed themselves, held about the State care system. It is not necessary to address that material in any detail. Some of it was scurrilous. And the validity of s 105 does not depend on individual cases.

44. The appellants also invoked the following statements by Sir James Munby, President of the Family Division of the High Court in England, in Re J [2014] 1 FLR 523; [2013] EWHC 2694 (Fam):

[27] One [aspect of transparency] is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the State, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction: Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 968, [2006] 2 FLR 998, para [166].

[28] I have said this many times in the past but it must never be forgotten that, with the State's abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a 20-year-old mother's baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

45. It is not necessary to determine whether or not the governmental and judicial powers conferred by the Act should be characterised as “amongst the most drastic” that might be exercised, taking account of the wide range of powers that governments and courts can exercise. There is no doubt that removing a child from their family is a very significant thing to do, with large, potentially life-altering consequences (whether for good or ill) for both the child and other family members. Reflection on past removal practices in Australia illustrates the significance of such consequences. The topic of removal of children from their families, or the imposition of other care orders or restrictions on parental responsibility, is thus an important one for public scrutiny and debate.

46. That being said, the extent of the burden is also limited. It is only directed to one particular topic of governmental action. In relation to that type of action, it does not prevent criticism or discussion of government policies, or even of particular actions by government so long as the child in question is not identified. In their submissions both the appellants and the amici referred to various reports which have been critical of State child welfare systems, illustrating the freedom to discuss the topic. Further, s 104C (quoted above at [31(3)]) envisages that in general the media are permitted to attend proceedings under the Act involving children or young people. There are means by which consent for identification may be given, including because the child or young person in question has the ability to consent to publication or broadcast once they turn 16. And the prohibition is content neutral in the sense that it does not attack criticism any more than it targets praise of government policies or action. Thus, for example, if the relevant department put out a report on its programs seeking to justify its actions, particular children or young people could not be named inconsistently with s 105.

47. The amici submitted that the stifling effect of s 105 was broader than just its legal effect because given the apparent generality of its terms, “ordinary, reasonable, people could take the law as criminalising a wide field of political discussion about children under the system of the Care Act unaware of any limits on that construction adopted by the courts”. Consideration of the burden on the freedom takes account of the legal operation and practical effect of the impugned law: see eg Brown v Tasmania at [90], [180], [237], [307]. That operation and effect is assessed in light of the proper construction of the law. Taking account of the practical effects of the law means identifying the effects of the law, properly construed, in the real world of human action. As Gordon J stated in Brown v Tasmania at [307], “the relevant practical operation of the provisions is the practical operation they have when applied according to their proper construction, not some operation hypothesised on there being some misapplication or misconstruction”.

48. In this context, I would characterise the burden on the implied freedom as not insignificant, but limited.

A legitimate purpose

49. The purpose of the impugned legal measure to be assessed in this context is the mischief to which it is directed: eg Brown v Tasmania at [101], [208], [321]. The purpose of s 105 can be identified here from the operation of the provision itself, as understood in its legal context, including the objects provision in s 8 of the Act (quoted above at [21]). The Attorney and the amici referred the Court to previous cases in which 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 most one of emphasis.

50. The evident purpose of the provision is to protect the privacy of children and young persons involved in the State care system by restricting the publicising of their identity as persons involved in that system. In so doing it advances the best interests of those children, consistently with the overall objects of the Act set out in s 8 (and echoed in s 9). The reasons for protecting privacy in this way are not difficult to fathom. The children and young persons who become involved in the State’s care system are vulnerable as a class. They become involved in the system because of concerns about their safety, welfare and well-being. As cogently explained by Brereton J in Smith SC at [49]-[51], there is a risk that such children and young persons will suffer some stigma if known to be involved in the child care system. That stigma, and the difficulties faced by such children and young persons, may be exacerbated if details of family dysfunction were made public. As the primary judge noted at [94], revealing publicly that children were involved in the system could publicise material that is harshly critical of such families, with possibly devastating consequences for all involved.

51. The privacy concern arises most significantly as regards children or young persons who themselves are the subject of care proceedings or relevant reports. But it also extends to children who, for example, are actual or potential witnesses involved in such matters. It is not unlikely that those children will have some familial connection with those who are the subject of the proceedings or reports. In any event, there is good reason to ensure that children who are witnesses or the like suffer no harm or opprobrium for actually or potentially playing that role, both in their own interests, and in the interests of obtaining their true testimony.

52. The concern founding s 105 is not new. The law has long recognised that cases concerning wardship of children, along with those concerning significant mental illness, are generally to be heard in private. In such cases “the Court is really sitting primarily to guard the interests of the ward 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 notion is recognition of the harm that might follow to the persons concerned if they were publicly identified as wards of the State or persons whose sanity was in question.

53. The type of concern underlying s 105 is a species of a broader genus of protecting children and young persons from being tainted publicly because of legal steps taken in relation to them: see eg Children (Criminal Proceedings) Act 1987 (NSW), ss 15A-15G, relating to publicly naming children involved in various ways (including as defendants) in criminal proceedings; Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 45, relating to children the subject of apprehended violence orders; Adoption Act 2000 (NSW), ss 119 and 180, relating to adoption proceedings.

54. The long-recognised purpose of protecting the privacy of children and young persons involved in the State care system does not conflict in any way with the maintenance of the constitutionally prescribed system of representative government. The purpose is thus legitimate in the relevant sense. The amici did not suggest otherwise.

55. The appellants submitted that there was an “alternative purpose, to protect the department when a child is removed unlawfully and based on unsubstantiated grounds”. There is no reason to find that that was the mischief to which s 105 is directed. The section is not directed to cases involving allegations of unlawful removal. The concern is a broader one relating to children generally involved in the State care system. Insofar as the appellants say that the “alternative purpose” is a consequence of s 105, that argument is considered below when considering the issue of balancing.

The burden on the freedom is justified

Suitability

56. Section 105 is a suitable means to achieve the identified purpose, in the sense of having a rational connection to that purpose. To criminalise the publicising of names of children or young people involved in the care system in one of the identified ways serves to protect their privacy by deterring that conduct.

57. The amici accepted that s 105 was suitable to achieve the purpose in question. But they sought to argue that there was a broader purpose at play in the context of the Act, namely promoting the best interests of the child or young person. They submitted that it is not the case that protecting the identity of those involved was necessarily always in their best interests, for example, if they had been improperly removed or were being mistreated after removal. That argument characterises the purpose at too high a level of generality. The focus of the provision is more specific. If the argument is that the provision goes further than is necessary, that is really a necessity or balancing argument. It does not mean that the provision is not a rational means of achieving the identified end.

58. The appellants argued that the provision “can and is being used to deter persons from directly or indirectly identifying the department” and to prevent criticism of removals and of the subsequent treatment of children removed. Even if their assertion was taken as being correct, that the provision may have other effects does not mean that the provision was not rationally directed to protecting the privacy of children.

Necessity

59. The next question is whether the burden on the freedom is necessary, in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom. A number of arguments were made on this front by the amici and the appellants.

60. The amici submitted it would be sufficient for the Children’s Court to be able to make suppression and non-publication orders on an ad hoc basis pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW). To the extent that did not cover all possibilities, they said, a narrower version of s 105 could have been enacted. The appellants made similar arguments.

61. The core point sought to be made by these submissions is that a more targeted means of protecting privacy would be to provide for the protection of privacy on an ad hoc, case by case basis. Such a scheme may be less burdensome on the implied freedom of communication because in the result there would be fewer restrictions imposed. However, to a significant extent the identified purpose would not be achieved to the same extent. It is not clear how this type of proposal would protect, for instance, the names of children or young persons immediately after any removal and prior to care proceedings being filed or considered in the Children’s Court. Nor is it clear how it would protect the names of actual or potential witnesses, nor of those who are merely the subject of relevant reports. If a positive order of the Court was needed then there would inevitably be a period during which relevant children or young persons could be identified. In the internet age, once material is published or broadcast the material commonly may remain accessible even after some court order is made.

62. The argument appears to boil down to saying that the matter should be more in the control of the Children’s Court so as to enable a case-specific calibration of the competing interests. The argument overlaps with the amici’s suggestion, noted above, that suppression of identity may not always be in the best interests of a child or young person. But the Children’s Court can consent to publication or broadcasting in the case of children, which means it is in the Court’s control in those cases. As for matters involving young persons, given the purpose is directed to protecting the interests of the children or young persons concerned, it is understandable that after 16 years the young person themselves should be treated as capable of making the decision. If the suggestion was that the matter should be left to the Court rather than to the young person (or to the Secretary as regards children or young persons under the parental responsibility of the Minister), then that would alter the scheme significantly, such that the claimed alternative cannot be said to be an obvious and compelling means of achieving the same end to the same extent.

63. The amici and appellants argued that pseudonyms could be used by the Children’s Court to conceal the identity of relevant children and young persons. It is not clear how this is different in substance from the operation of s 105. It may be that the suggestion is that this would enable parents or caregivers to identify themselves more readily without identifying the child or young person, simply by enabling them to refer to the child or young person by a pseudonym. In other words, the suggestion may be meant to allow indirect identification, in contrast to s 105. If so, then the suggested alternative would not achieve the purpose to the same extent. Otherwise, it is difficult to see how this suggestion involves any material difference.

64. The amici then pointed to ss 15A-15G of the Children (Criminal Proceedings) Act. The scheme there is similar but not identical to the prohibition in s 105, dealing (broadly) with criminal proceedings involving persons under 18 years of age. The amici submitted that the prohibition in s 15A was not as far-reaching as that in s 105 for the following reasons:

1. Section 105 is expressed to be a strict liability offence (per s 105(5)) whereas s 15A is not so expressed. Further, the penalty under s 105 is up to 2 years imprisonment whereas for s 15A, it is 12 months. Strict liability offences allow for a defence of honest and reasonable mistake of fact. There is force in the Attorney’s submission that such criticisms involve “tinkering”. These differences have little effect on the extent to which the constitutional freedom is burdened.

2. Section 15A expressly requires that the broadcast or publication “connects the person with criminal proceedings”. However, as explained above at [30], the same requirement is implicit in s 105.

3. The amici pointed out that s 15A protects the identity of people under 18 who in fact are a witness, are mentioned or are involved in proceedings. It does not also protect such people who are reasonably likely to take such a role, in contrast to s 105. That merely shows that s 15A does not extend its protection as broadly as s 105 does. A somewhat different policy judgment has been made. To cut s 105 back to afford narrower protections would not achieve its purpose to the same extent.

4. The amici referred to s 15C, which empowers a court to authorise publication or broadcasting of the name of the person if they have been convicted of a serious indictable offence, taking account of a range of factors set out in s 15C(3). But as already noted, under s 105 the Children’s Court can consent as regards children, and the recognition of young persons’ autonomy by enabling them to consent after the age of 16 reflects a different policy choice in the context at hand. It is not surprising that a different choice should be made – giving the power to the young person rather than the Court – in circumstances where there is no wrongdoing by the young person involved in the context at hand, in contrast to where such a person has committed a serious indictable offence.

65. The amici also suggested that it would be possible to create a “public interest” defence to s 105. The primary judge apprehended that the appellants made a similar type of argument below to the effect that persons who wished to identify children for the purposes of criticising the statutory system, and its implementation, should be permitted to do so. As his Honour observed at [109], in rejecting that argument, a regime based upon motivations would inevitably involve contestable subjective characterisations. As for both arguments, they would involve identification of a child or a young person in connection with the child welfare system based on another person’s own motivation or assessment of the public interest. That motivation or assessment would only then be assessed on an ex post facto basis by a court. The court might find that there was good justification, but it might not. By then the harm would have been done. Such a scheme would not achieve the protective purpose of the provision to the same extent.

66. In sum, neither the amici nor the appellants have identified any obvious, compelling and less burdensome alternatives to s 105 which achieve its purpose to the same extent.

Balancing

67. The final question is whether the law is adequate in its balance, that is, not unduly burdensome on the freedom taking account of the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom. In considering this issue it is important to keep steadily in focus the nature and extent of the burden on the implied freedom imposed by s 105, as described above.

68. It is relevant, here, that s 105 should be construed as permitting a child or young person whose identity is protected to consent to their name being published or broadcast after they reach the age of 16 (and at any time up until the prohibition ends when they turn 25). Were s 105(3) to be construed literally, then a question may have arisen as to whether the section went too far in restricting the freedom in a context where there was decreasing justification, based on the identified purpose, for the person protected to have no say in the matter as they aged and moved beyond any connection to the child welfare system. Given the construction adopted above, it is not the case, as the appellants submitted, that “any child who has become an adult (up until he or she is 25 years of age) is prohibited … from speaking publicly about what happened to them whilst in the alleged care of the government”.

69. The amici also argued that when s 105 is compared to s 104C (as discussed above at [31]), there may be “an asymmetrical protection of publications and broadcasts conducted for profit to the detriment of other forms of publication and broadcast involving social media”. Section 104C does recognise the entitlement of those “preparing a report of the proceedings for dissemination through a public news medium” to attend relevant proceedings, subject to the control of the Children’s Court. But in undertaking any reporting such persons are subject to s 105. There is no asymmetry of the kind claimed.

70. The main argument put by the amici and the appellants with respect to balancing was that s 105 deterred criticism of governmental decisions on an issue of public importance, a point they put in relation to a number of aspects of the proportionality analysis. As discussed above when identifying the extent of the burden, s 105 does restrict somewhat the manner in which such criticisms may be made. But, as has also been explained, the restriction is relatively limited. The claimed restrictive effects of the measure is overstated by the amici and appellants. The second appellant, for example, submitted that s 105 “functions in reality to protect the Department from the kind of proper performance evaluation that should be mandatory for any agency charged with the care and protection of children”. Yet s 105 does nothing to prevent swingeing criticisms being made of the performance of the relevant department, or its officers, including by reference to particular cases. What it requires is that in so doing individual children are not identified, expressly or by implication. True, that may reduce the rhetorical force of some arguments, because identifying individual cases can be powerful. But reference to individual cases are not forbidden so long as the child or young person cannot be identified. Insofar as there are allegations of unwarranted removal or ongoing harm, these are matters that can be dealt with by the Children’s Court and the court system generally, as raised by persons with standing to raise them.

67. Even so, there is a burden on the freedom. That not insignificant but limited burden is readily justified. Why should the important privacy interests of the vulnerable child or young person be overridden by the desire of a critic to use their case as an example? The fact that the critic thinks themselves justified, and may even be the parent who has lost responsibility for their child, does not mean that there is no legitimate interest in protecting the privacy of the child in question. If the protected child or young person thinks it is in their own interest for publication or broadcast to occur, they can consent to that from when they are 16. Prior to that time the Children’s Court can be asked to consent. In this context it is certainly not the case that “the benefit sought 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].

68. In the result, the burden on the implied freedom of communication on political and government matters is justified. Section 105 is not invalid for breach of the implied freedom.

Orders

73. The orders of the Court should be as follows:

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.

**********