Burton v Director of Public Prosecutions (NSW)

[2021] NSWSC 1230

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

28 July 2021

Decision date:

30 September 2021

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Summons of the plaintiffs dismissed.

(2) Costs reserved.

Catchwords:

CONSTITUTIONAL LAW — Commonwealth Constitution — implied freedom of political communication — where impugned law prohibits publication of names of children and young persons connected with care proceedings — publication defined broadly by statute — application of structured test for validity — slight burden on political communication made out — whether burden justified — characterisation of impugned law by reference to statutory objects — legitimate protective function made out — high likelihood of irreparable damage absent impugned law — inherently sensitive subject matter — burden consequently found to be justified —— relevance of impugned law being an offence of strict liability — relevance of criminal penalty for contravention — quantitative analysis of persons likely to be affected by impugned law — severance not possible — offence-creating provision held to be constitutionally valid

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 9, 105

Criminal Procedure Act 1986 (NSW)

Judiciary Act 1903 (Cth), s 78B

Cases Cited:

Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23

CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25

He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25

Re J (A Child) [2013] EWHC 2694 (Fam)

Re Tracey [2011] NSWCA 43

Category:

Principal judgment

Parties:

Paul Robert Burton (First Plaintiff)
Andrew Katelaris (Second Plaintiff)
Director of Public Prosecutions (NSW) (First Defendant)
Local Court of New South Wales (Second Defendant)
Attorney General of New South Wales (Intervener)

Representation:

Counsel:

D Kell SC and J Davidson (First Defendant)
M Sexton SC and M Adams (Intervener)

Solicitors:

Director of Public Prosecutions (NSW)
Crown Solicitor’s Office (Second Defendant and Intervener)

File Number(s):

2021/6362

Publication restriction:

Nil

Introduction

1. This judgment resolves an application for a number of orders, including a declaration, by Pastor Robert Burton and Dr Andrew Katelaris (hereinafter, “the plaintiffs”) arising from a decision of the Local Court made during committal proceedings for alleged offences. The learned Magistrate determined that s 105 (“the section”) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”) was not constitutionally invalid.

2. During the committal proceedings in which the plaintiffs (in that Court, the defendants) were alleged to have breached the section, the plaintiffs had impugned s 105 of the Act, by reason of its asserted burden on the implied freedom of political communication. In other words, to state concisely the principles relevant to that assertion, the plaintiffs contended that s 105 impermissibly burdened the implied freedom because it was not reasonably appropriate and adapted to the legitimate purpose of the Act.

3. The Magistrate rejected their submission, and it is that rejection that led to the summons of the plaintiffs filed in this Court on 8 January 2021.

4. The plaintiffs seek relief in the nature of certiorari, mandamus, and a declaration that the “purpose of s 105 is to protect a child or young person by preventing them from hearing or reading about themselves in relation to the care proceedings or other children’s court proceedings they are subject to”. They appeared for themselves before me, with Dr Katelaris making it clear that he was content to rely very largely on the written and oral submissions of Pastor Burton.

5. The first defendant (hereinafter simply “the defendant”, in light of the submitting appearance of the Local Court) in this Court is the Director of Public Prosecutions, who was the prosecutor in the Local Court. She opposed the orders sought, on the straightforward basis that the section is not invalid. She was represented by the Crown Advocate.

6. Separately, the Attorney-General of New South Wales intervened without objection. He was represented by the Solicitor-General. Quite apart from resisting the substantive proposition of the plaintiffs, he raised a jurisdictional issue by way of s 78B of the Judiciary Act 1903 (Cth) as to the characterisation of the power of the Local Court in these proceedings. The submission in a nutshell was that the Local Court did not exercise federal judicial power in determining the validity of the section, or alternatively merely provided a non-binding expression of opinion about the validity of the section. I understood that submission to be based on the well-established administrative nature of committal proceedings.

7. At the conclusion of the hearing before me, however, both the defendant and the intervener submitted that, because of the way the plaintiffs had framed their application, there was no real need for me to pause to consider that jurisdictional issue, and that I could decide the case on its merits. The point was made that, if the thesis about power was correct, although orders founded on judicial review would not be soundly based, a declaration of invalidity - if otherwise called for - would not suffer from the same defect. All parties being agreed about that, I shall proceed to decide the substantive question.

8. For the reasons that follow, I decline to make any of the orders sought, including a declaration. In my opinion, s 105 does not impermissibly burden the implied freedom of political communication in the Commonwealth Constitution.

Background

9. Because of the nature of the application, few events or circumstances need to be recounted. To the extent necessary, I shall speak generically, in order to protect the privacy of at least one child, and others.

10. On 21 December 2017, the first plaintiff was charged with unlawfully publishing or broadcasting the name of a child contrary to s 105(1) and (2) of the Act. The second plaintiff was charged with the same offence.

11. The charges relate to conduct that allegedly occurred between May and July 2017. That alleged conduct was said to contravene s 105(2) of the Act, by virtue of the alleged publication on social media of the name of a child who had been the subject of intervention by the authorities, pursuant to the Act.

12. It is said that the child in question had a significant following on Facebook, ostensibly because their serious medical condition was being treated by a drug that is often prohibited. That alleged treatment assertedly resulted in significant improvements to the child’s health. It was said that the removal of that child from the care of his family was witnessed by “millions of people on social media”.

13. The plaintiffs were allegedly involved in the publication of videos showing the removal of the child. At several points in the videos, the name of the child as well as their identifying features (including details of medical records) are allegedly mentioned. In one video, Pastor Burton allegedly shows the face of the child to the camera.

14. In short, my understanding is that the prosecution case against the plaintiffs is that they deliberately identified (at the least, indirectly) a child who was subject to action pursuant to the Act; that they did so intentionally (for want of a more precise word in this conspectus), with the result that they cannot rely upon the “defence” of honest and reasonable mistake of fact with regard to the strict liability offence created by the section; and that none of the other exculpating circumstances set out in the section existed.

15. The offences under discussion appear in Table 1 of the Criminal Procedure Act 1986 (NSW), with the result that either the plaintiffs or the prosecutor could elect to have the charge proceed on indictment. The plaintiffs did so, with the result that, as I have said, a committal hearing was conducted, at which the question of the validity of the section was first raised.

16. To complete this sketch of background, the plaintiffs were originally charged with other offences, alleged to have contravened another statute. Some of those charges remain on foot. But because their offence-creating provision is not asserted to be constitutionally invalid, I shall not discuss them further.

The Act

17. As I have said, the plaintiffs were charged under s 105 of the Act. The charge dates were between 31 May 2017 and 15 July 2017.

18. From 31 May 2017 until 6 July 2017, the section was in the following terms (I was told at the hearing that it has changed since then, though not significantly for present purposes):

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.

(emphasis added)

19. Between 7 and 15 July 2017, the Act was amended, but the section remained unchanged.

20. One aspect of assessing the constitutionality of the section is to consider its purpose. In doing so, one should have regard to the stated purposes of the Act as a whole, as set out by s 8, as it was during the charge period:

8   What are the objects of this Act?

The objects of this Act are to provide—

(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.

21. Also relevant to the assessment is s 9 of the Act, which outlines the “paramountcy principle” to be applied to proceedings instituted under the Act. Section 9 relevantly provided during the charge period:

9   Principles for administration of Act

(1)  This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

…

Submissions of the plaintiffs

22. All parties agreed that, to the extent that I am asked to make a declaration about constitutional validity “afresh” and that my answer to that question would resolve whether I should make a declaration or not, my task is not “tethered” to discerning error in the determination of the Magistrate. For that reason, I shall respectfully not pause to summarise the reasons why his Honour rejected the propositions of the plaintiffs.

23. Even so, many of the submissions made by the plaintiffs were framed in that way, and I believe that recounting them without alteration is appropriate, and fairly explains the bases upon which they submit that the section is indeed invalid.

In writing

24. The plaintiffs submitted that the Magistrate committed a number of errors of law that led to an incorrect decision. Broadly, those asserted errors were said in written submissions to be the following:

“His Honour found the Act fulfils its purpose but it does not.

His Honour found that it doesn’t infringe on our political free speech even though clearly it does.

His Honour found that this matter should be addressed case specific but despite the plaintiffs outlining this case to him, he did not take into account our case specific.

His Honour also failed to recognise the constitutional implied right for laws to be equally and fairly applied to all people (so all people have the right to free political speech other than the two plaintiffs)*

*This prohibition also extends to the parents (or those with parental responsibility) of the children that are removed by the state.”

25. Turning to those propositions in more detail, the plaintiffs referred to the decision of Magistrate Maiden at [26], where his Honour found that “state power” created the offence of s 105, and in his Honour’s view, that was not an exercise of a telecommunications power or a restraint on the use of a telecommunications power (nor an attempt to do so).

26. The plaintiffs relevantly submitted that s 105(1B) and (1C) “clearly involve a restraint on the use of a telecommunications power namely Facebook social media in this instance and the internet as used by the public for free communication and free political speech”.

27. Secondly, the plaintiffs submitted that his Honour made a separate error of law by referring to Re Tracey [2011] NSWCA 43. The plaintiffs sought to bring his Honour’s attention to the UN Convention on the Rights of the Child and its importance, but it was contended that his Honour failed to make mention of it in his judgment “other than in his closing statements where he decides it does not have sufficient weight to override the primary intention of section 105, but without providing any reasons or explanation as to why”.

28. Thirdly, while his Honour correctly concluded that the plaintiffs had engaged in a political communication, the plaintiffs emphasised the importance of Re J (A Child) [2013] EWHC 2694 (Fam) to which his Honour referred. Re J emphasised, among other things, the necessity for the public to be confronted with “care and adoption cases” (at [27]). I understood the submission to be that his Honour did not give sufficient weight to the principles enunciated in Re J.

29. Fourthly, the plaintiffs submitted that his Honour failed to recognise the specific facts of their case. The plaintiffs contended that, although his Honour identified that it was open to people to address the issues surrounding the Act without mentioning a child, his Honour failed to recognise that the plaintiffs “were and still are not able to do this without breaching section 105”.

30. Fifthly, the plaintiffs submitted that the State authorities rely on s 105 to silence parents when those authorities remove children “without warrant”, and that the section can be used to facilitate unlawfully out of home care industries. It was said that this benefitted what was allegedly a “multi-billion dollar state-condoned child abuse system”.

31. Sixthly, the plaintiffs contended that a proper application of the principles in s 9 of the Act by his Honour would have resulted in the success of their application. The plaintiffs questioned the efficacy of those principles in protecting children when, it was said, everything an affected child did was to be controlled by their state-appointed guardian.

32. Separately, in regard to the child at the centre of the prosecution against the plaintiffs, the plaintiffs asserted that there was no mention in the judgment of the possibility that the child may have been confronted with violence in care. It was said that this lends further support to the thesis that the natural parents of the child “clearly love him”, and that the “only acts of violence” perpetrated upon the child were said to be by the State.

33. Seventhly, the plaintiffs contended that the law was not used appropriately in their case. Accordingly, because it produced an inappropriate outcome, it cannot be deemed compatible with the maintenance of the constitutionally prescribed system of representative and responsible government in Australia. That was said to be because the section is so wide in its construction that it imbues the State with the unfettered power to enforce a strict liability offence with a maximum penalty of imprisonment “to anyone anywhere”.

34. The plaintiffs separately raised the issue of not being able to speak about a child until the child were to attain the age of 25 years, as stipulated by the exception in s 105(1A)(a). It was said that this is unconstitutional because other legislation prescribed the age of adulthood as 16 or 18.

25. Eighthly, the plaintiffs submitted that s 105 was relied upon by the State not to protect children but to “silence parents when [the Department] remove children without warrant”.

26. Ninthly, the plaintiffs submitted that by the end of the year the “child removal industry” will be “100% privatised”, and that this financial incentive demonstrates why “[m]ore and more children are now removed every week on more and more spurious grounds on wider and wider demographics of people”.

27. Tenthly, the plaintiffs submitted that the State authorities allowed a television station to broadcast the name and image of the child, which meant that potentially millions of people were able to identify that child. According to the plaintiffs, their continued prosecution under the section demonstrates that the section is being unjustly applied to them.

28. Finally, the plaintiffs referred to the statement of the Magistrate that the purpose of s 105 was to “provide protection immediately upon the happening of certain triggering events”. The plaintiffs submitted that this could not be the case, as they were charged under s 105 approximately six months after the removal of the child. The plaintiffs contended that such a fact illustrates that s 105 is not being used for its purported purpose.

Orally

39. In oral submissions, the following matters were emphasised (in light of my approach to the ancillary question about power, I shall not trouble to repeat what was said about it).

40. First, thousands of parents are unable to speak about the removal of their children from their care, because of their fear of being charged pursuant to a section that is far too broad. In support of that proposition, affidavits were placed before me, said to demonstrate a real public concern about how the section operates in practice.

41. Secondly, a parent who identifies themselves, and who speaks about concerns about their child, could be said to have identified that child indirectly, in accordance with s 104(5), despite trying to take steps not to do so.

42. Thirdly, if the parent were to express concerns by way of social media, by its nature that would tend to identify the author of a post, even if a pseudonym were adopted in an effort at anonymization, thereby creating criminal liability.

43. Fourthly, the way the section is being interpreted by State instrumentalities, and applied by way of commenced or threatened prosecutions, is contrary to the principles enunciated in ss 8 and 9 of the Act.

44. Fifthly, certain organisations are paid to care for children who have been taken into care pursuant to the Act. According to the plaintiffs, that has led to a “multi multi billion dollar child trafficking industry”: Tcpt, 28 July 2021, p 13(21).

45. Sixthly, it was accepted in oral submissions that my decision need not be based on the identification of error by way of detailed analysis of the judgment of the Magistrate. Rather, it was agreed that my task is to assess the section in accordance with the principles enunciated by the High Court of Australia with regard to analysis based upon structured proportionality. In similar vein, the argument about the telecommunications power was not developed.

46. Seventhly, when asked by me to reflect upon the hypothetical situation whereby, if the section were struck down as invalid, a malevolent person may wish to identify a child and their parents, and vilify all three of them with the utmost cruelty on the basis of that child having been taken into care, and that person being unfettered by criminal sanction against doing so, the response was the following (Tcpt, 28 July 2021, pp 23(35)-24(2)):

HIS HONOUR: If I held that 105 were invalid, and therefore there's no prohibition on people naming children who are taken into care, presumably a very unpleasant malevolent person could say very harsh personal critical things about that child and his or her parents.

Now, that's the logical outcome of your proposition that 105 is invalid, is it not? I'm not saying that stands in the way of your thesis, I'm just‑‑

FIRST PLAINTIFF: No.

HIS HONOUR: ‑‑exploring.

FIRST PLAINTIFF: Not entirely, your Honour, because it's more about the way 105 is constructed and how it addresses and what it addresses. It needs to be changed. I'm not arguing for a moment that we do not need to protect a child from stigma or from the embarrassment of any horrific situation, you know, particularly with very serious matters of child abuse. This we understand completely.

(emphasis added)

It was also said that suppression orders and other legislation would protect the privacy of the child in question and their family in that posited example.

47. Eighthly, the submission was that in practice the Act burdens the freedom of political communication “quite severely”, because it is simply impossible for many affected parents publicly to express concerns about their own children.

48. Ninthly, it was accepted that it would be possible for generalised concerns to be expressed about the child protection system in a way that provides complete anonymisation, direct or indirect, of a child. But the point was made that such a step renders any critique devoid of human detail, and thereby robbed of immediacy. I was asked to reflect how a fundraiser in support of parents who wish to have their child returned to their care could ever succeed, if nothing specific could be said about the poignant details of the child or their parents. I was also asked to reflect upon the effectiveness of the Christian message if it were forced to be stripped of any details of the life of Jesus of Nazareth.

49. Tenthly, it was said that there is almost always deep emotional suffering occasioned to parents whose children are removed from them, and it is exacerbated by their inability to speak out about asserted wrongdoings underpinning that state of affairs. Indeed, it was said that the harm occasioned by the section is worse than any benefit that it confers; in other words, in practice, the restrictions it imposes, whatever its possible good intentions, are quite disproportionate.

50. Eleventhly, in practice, the threat of prosecution pursuant to the section can be used capriciously or even vindictively, to pressure persons into silence, even when their concerns and complaints may be perfectly valid ones.

51. Dr Katelaris made the following brief supplementary oral submissions.

52. First, he objected to his inability, enforced by me, to name the child in question in open court, and described it as a wrongful victory of “authority over truth”.

53. Secondly, he submitted that the Act facilitates wrongful action by the State, by way of the enforcement of silence.

54. Thirdly, he noted that, pursuant to s 105(5), the offence in question is one of strict liability, with the result that no “usual” mental element is required to be proven by the prosecution, and the plaintiffs (and any other prosecuted person) are thereby limited to relying upon the “defence” of honest and reasonable mistake of fact: see He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 and CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25.

55. Fourthly, the Act profoundly burdens political communication, because it prevents profound wrongdoing being brought to light.

56. In oral reply to the defendant and the intervener, Pastor Burton submitted that the burden upon the implied freedom is indeed a heavy one, because it has practical application to thousands of children and their families.

57. Secondly, far from applying only to a small fraction of the 8 million or so members of the community of New South Wales, the Act can accurately be described as having engendered a crisis.

58. Finally, he emphasised the point that, because of the breadth of the prohibition on indirect identification of a child the subject of intervention, even for a parent to express publicly on social media their love for a child taken from the care could be to commit a criminal offence, making that parent liable to imprisonment.

Submissions of the defendant and the intervener

59. Yet again, I shall not repeat the extensive written and oral submissions made about the ancillary question that, in the event, does not require resolution by me.

60. The Director and the Attorney submitted that the section does not burden the implied freedom of political communication at all. Their alternative position was that, if it does, it does so only to a very limited degree. And in any event, the section is soundly consonant with the implied freedom, they submitted, because it is appropriate and adapted to the legitimate purpose of protecting children and young persons from having their safety, welfare, and well-being adversely affected by the public dissemination of information connecting them to inherently sensitive actions and proceedings undertaken pursuant to the Act.

Determination

Summary of my approach

61. In reflecting on the assertion that the section is invalid, I have adopted the structure of analysis to be found in the plurality judgment in Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 (Comcare). No party submitted at the hearing that I need go further than to reflect on the latest exposition by the High Court of Australia of the principles that should be applied in determining an application such as this. In particular, although they referred at length to Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 in their written submissions, neither plaintiff asked me in oral submissions to return to that case from almost a quarter of a century ago, nor to any case since then that precedes Comcare.

62. In accordance with Comcare, I have asked myself the following questions:

1. Does the statute in fact burden the freedom?

2. If so, is the burden justified?

3. If so, is the law reasonably appropriate and adapted to advance its purpose?

The answer to that question will be provided by asking myself whether the law is:

1. Suitable;

2. Necessary; and

3. Adequate in balance.

63. Before turning to answer all of those questions, I set out briefly some aspects of the submissions of the plaintiffs that I do not propose to engage with at any length. In saying that, of course I am not being personally critical of two self-represented litigants who are facing the possibility of imprisonment; I am simply seeking to focus upon the central questions that the law asks me to answer, and to put other questions raised to one side.

64. First, because of the very different constitutional positions between the United Kingdom and Australia with regard to implied freedoms and countless other matters, I do not propose to engage with the jurisprudence of the former.

65. Secondly, the question that I am asked to answer is whether the section is invalid, not whether persons are being prosecuted inappropriately, or capriciously, or ill-advisedly.

66. Thirdly, if the Act is assertedly being implemented or administered unlawfully, that is a matter for separate litigation that the plaintiffs may care to mount. To repeat: the question that I am to answer is whether the section itself is invalid, not whether something wrongful has allegedly been done pursuant to the section.

67. Fourthly, the assertion that the Act as currently enacted leads to injustice and should therefore be amended or repealed as a matter of policy is a matter for submission to Parliament, not for me.

68. Fifthly, it is obviously beyond my powers to rewrite the offence-creating provision so that it prohibits acts undertaken with one motivation (for example, the vilification of children taken into care, and their parents), but does not prohibit acts undertaken with another motivation (for example, criticism of the State authorities). That kind of “severance” is well beyond my remit.

69. Finally, I have borne steadily in mind that the topic under discussion is not a constitutional right vested in the plaintiffs, or any other individual. It is an implied freedom, against which any statutory interference is to be measured for validity by way of structured proportionality. Having said that, bearing in mind that the plaintiffs are being prosecuted pursuant to the section, no party raised a question of standing.

70. Having summarised the matters that I do not believe are within my jurisdiction, I proceed to give the answers that I believe I am empowered to provide. I commence by resolving the contested question of whether the section burdens political communication at all.

1. Does the statute in fact burden the freedom?

71. It is important at this stage to set out some actions that the section does not prohibit.

72. It does not prohibit discussion of the system for dealing with children created by the Act, or any other statutory instrument.

73. Nor does it prohibit discussion of the implementation in practice of that system.

74. Nor does it prohibit criticism – perhaps very harsh criticism – of that system and its implementation.

75. Nor does it prohibit any person, including a parent or carer of a child taken into care, undertaking any of those actions, so long as they are done with lawful generality.

76. As can be seen, what the Act does prohibit is direct or indirect identification of a child who has been subject to the statutory system. And I accept the proposition of the plaintiffs that indirect identification is defined quite broadly by way of s 105(4).

77. Having set out my assessment of the parameters of the offence-creating provision, I accept the submission of the plaintiffs that it does indeed impose an effective burden on political communication. That is because a particular kind of political communication – namely, by which a citizen seeks to make a political point about the system or its implementation, in a way that at the least indirectly identifies a child who has been subject to it – is prohibited by criminal sanction.

78. In other words, I accept the point made by example by the plaintiffs about a putative fundraiser, whereby a parent or other citizen seeks to raise money with the intention of having proceedings defended, or litigation commenced, or having the law changed: such a person would not be able to make their point by publicising the specifics of a particular case if to do so were to identify a child directly or indirectly. That would constitute a criminal offence.

79. I believe that my analysis is consistent with the point made by the plurality in Comcare at [29] (citations omitted):

“A law which prohibits or limits political communication to any extent will generally be found to impose an effective burden on the implied freedom of political communication. … The question is whether that burden is justified according to the two part test of whether the impugned law is for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution and, if so, whether that law is reasonably appropriate and adapted to the achievement of that objective.”

(emphasis added)

80. In short, contrary to the primary submission of the defendant and the intervener, my answer to the first question posed by the plurality is in the affirmative.

81. Having said that, I assess the burden as being a reasonably slight one. That is because, to repeat, it is not a matter of me assessing whether a purported right of an individual or a group of individuals to discuss political matters as freely as they may wish is markedly circumscribed by the section. Rather, as the plurality explained, it is a matter of me considering the extent of the burden upon political communication as a whole (at [20], citations omitted):

“As has been emphasised by this Court repeatedly, most recently before the Tribunal's decision in this matter in Brown v Tasmania, the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication is relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law's effect on political communication as a whole. More specifically, even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.”

(emphasis added)

82. In that regard, I accept the submission of the plaintiffs that there is significant public concern about the way in which the system created by the Act operates. I say that because common experience is that the public is concerned generally with the administration of justice, with those aspects of it that may be coercive, with how children are treated within our society, and, in particular, with the intersection of the three.

83. I also accept that, as a matter of human nature, many parents of children the subject of intervention would be extremely upset about it, and may wish to draw attention to the alleged deficiencies of that system.

84. Even so, to repeat: the section prohibits only political communication about those topics of a very particular kind, that which identifies a child subject to the system, directly or indirectly.

85. Bearing in mind the totality of political communications that may be undertaken by persons within New South Wales about countless topics, and bearing in mind that the section prohibits only a very particular kind of political communication about a particular topic, I believe that the burden, seen through that prism and not as an assessment of the intrusion upon the desires of certain individuals to say certain things, is a relatively slight one.

2. Is the burden justified?

86. Having determined that the section does burden political communication, but to a relatively slight degree, I go on to ask myself whether the burden is justified.

87. The answer to this further question depends on whether the impugned law was enacted for a legitimate purpose consistent with the system of representative and responsible government mandated by the Commonwealth Constitution.

88. “Purpose” refers to the legislative purpose; that is, the purpose of the Act and what it sets out to achieve. In Banerji at [30], the plurality determined legislative purpose by reference to the “main objects” of the statute impugned in that litigation, which were set out in s 3 of the relevant legislation. In similar vein, here I shall determine legislative purpose by reference to the objects set out in s 8 of the Act.

89. As I have recounted, the plaintiffs advanced the proposition that the section was not concerned with the objects set out in s 8. The plaintiffs broadly contended that the true purpose of s 105 was to prevent an affected child from reading about themselves on social media.

90. In light of the statutory context outlined above, the language of the impugned section, and my acceptance of the proposition that legislation such as the section in question can readily have purposes that extend far beyond that very limited one identified above, I am not persuaded that the true purpose of the Act is that which is alleged by the plaintiffs.

91. In my opinion, the purpose of the section, seen in the context of the explicitly stated purposes of the Act and the structure of the Act as a whole, is to protect children who are engaged with by the statutory system from having their privacy invaded by way of their direct or indirect identification.

92. That purpose is a familiar one in our system of administration of justice, in that one can readily bring to mind other instances of the protection of the identity of persons who become involved in litigation. Examples that spring readily to mind are: children who become involved as defendants or witnesses in litigation regarding criminal offences (to which the section itself refers at its conclusion); complainants in sexual assault proceedings; persons involved in family law proceedings; and persons the subject of adoption proceedings. No doubt there are countless others.

86. All of those instances, I believe, share a general underlying purpose: the sparing of persons who may be vulnerable from publicisation of their involvement in proceedings that may be intrinsically personal and private and intrusive in nature. And the underlying purpose of sparing persons from that is to save them from, at the least, embarrassment, and, at the worst, life-threatening trauma.

87. I respectfully consider that it is relevant to my assessment of the purpose underpinning the section that the plaintiffs did not effectively engage with my concern, expressed tentatively at the hearing, about potential publication of the details of the identity of children subject to the system under consideration and their parents that, far from being critical of the State authorities, could be harshly critical of such families, with possibly devastating consequences to both children and adults.

88. In short, in my view the purpose behind the section is the protection of potentially vulnerable children and potentially vulnerable families. And I believe that such a purpose is soundly legitimate.

89. As for whether it is consistent with the system of responsible and representative government mandated by our Constitution, I also believe that that attribute is demonstrated.

90. After all, that system calibrates through legislation rights and responsibilities that are litigated in courts and, as needs be, enforced by court orders. Generally speaking, those courts are open, and public comment upon their proceedings is unfettered. That is an important attribute of the Australian polity. But it is not always the case. Sometimes limitations upon publicisation and comment – including potentially legitimate criticism – are created, in order to permit those courts to operate effectively. I have already given examples that permit litigants to exercise their rights without fear of embarrassment or much worse. Further examples that again spring readily to mind are the doctrines of contempt, including sub judice contempt; the implied undertaking in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36; the de facto approach whereby the media does not publicise proceedings in open court that occur in the absence of the jury in a criminal trial; the use of psuedonyms to protect the identity of informers who would otherwise be at risk of serious harm or death; the closing of courts in exceptional circumstances to do with national security; and the immunity of judges and juries from proceedings for defamation, based on their verdicts or judgments. No doubt there are others.

91. In my opinion, the section is designed to permit a system of State intervention in the lives of children to be litigated efficaciously, and without the fetters that would arise in theory and practice if there were a fear of identification of those children. I consider that it is consistent with the system of responsible and representative government mandated by the Constitution.

92. Accordingly, I answer the second question in the affirmative, and move to the third question.

3. Is the law reasonably appropriate and adapted to advance its purpose?

100. The pathway for determining this issue is set out in Comcare at [32]:

“A law may be regarded as reasonably appropriate and adapted or proportionate to the achievement of a legitimate purpose consistent with the system of representative and responsible government if the law is suitable, necessary and adequate in its balance.”

101. I turn to reflect immediately upon those three further “sub-questions”, in accordance with the further analysis of the plurality.

i. Suitability

102. In assessing suitability, I apply the principle stated in Comcare at [33]:

“A law is suitable in that sense if it exhibits a rational connection to its purpose, and a law exhibits such a connection if the means for which it provides are capable of realising that purpose.”

103. Without delving into detail here, I believe that the law in question – an offence-creating provision capable of providing (at the least) personal and general deterrence by way of the threat and imposition of punishment – is certainly capable of realising its purpose, by deterring persons from directly or indirectly identifying children the subject of the Act, and thereby protecting them from the potential for harm.

104. The section therefore exhibits a rational connection to its purpose, and the question of suitability must be answered in the affirmative.

105. I turn to the second “sub-question” with regard to the third question.

ii. Necessity

106. The test for necessity, explained in Comcare at [35], is as follows:

“Where, as here, a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution and it is suitable for the achievement of that purpose in the sense described, such a law is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom.”

(emphasis added)

107. In my opinion, in determining whether an impugned law is “necessary” in its constraint on the implied freedom, the plurality has used language that suggests that necessity should be assumed unless the contrary can be demonstrated. To put it another way, the phraseology suggests that it is up to the party asserting that the law is an impermissible burden to demonstrate that there is: a) an obvious and compelling alternative, and b) that that alternative is equally practicable, available, and would result in a significantly lesser burden.

108. At no point did the plaintiffs explicitly posit a plausible lesser alternative consistent with that formulation. Implicitly, perhaps, they proposed a less intrusive alternative whereby persons who wished to identify children subject to the Act and criticise, vilify, or humiliate them should be prohibited from doing so; but persons who wished to identify children subject to the Act and criticise the statutory system and its implementation should be permitted to do so.

109. In my respectful opinion, however, such a regime based upon proof of motivation (as opposed to any more orthodox mental element in criminal law), inevitably contestable subjective characterisations thereof, and separate normative judgements about the desirability of intended consequences, would be unworkable as an enforceable deterrent regime of criminal inculpation. Bearing in mind the exploitation of social media over many years for “trolling” and the like, if such an amorphous regime of purported deterrence were adopted, one can readily predict situations whereby many individuals would publicise the identities of children subject to the Act, and their families, for malevolent purposes, and with extremely damaging outcomes.

110. Separately, it is true that the present creation of a strict liability offence places an evidential onus upon a defendant to show that they acted pursuant to an honest and reasonable mistake of fact. I accept that the creation of such an offence is more rigorous than the creation of a “mental element” offence that requires, as an element, primary proof by the prosecution of a state of mind such as intention or recklessness on the part of a defendant.

111. But to create such an offence here would, in my opinion, inevitably lead to difficulties in proof, in terms of intention for, or foresight of, outcome with regard to indirect identification. In my opinion, the creation of a strict liability offence strikes an appropriate balance between, at one end of the spectrum, a “mental element” offence, and, at the other, an offence of absolute liability.

112. In short, whilst I accept that the section is broad in its reach, because of the statutory concept of indirect identification and the nature of the offence created, I do not consider that a practical, less intrusive formulation has been proffered by the plaintiffs. The section passes the test of necessity.

113. That leads me then to the third sub-question.

iii. Adequacy in balance

114. At [38] of the plurality judgment it was said (citation omitted):

“If a law presents as suitable and necessary in the senses described, it is regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom.”

115. Again, it can be seen that the “onus” at this stage of the analysis is placed upon those who would assert invalidity.

116. In a nutshell: the benefit sought to be achieved is the protection of children and their parents from potentially irreparable harm, by way of the publicisation of their involvement in litigation and other procedures that will very often raise sensitive and distressing details about the personal lives of those children and their families.

117. As I have discussed, I accept that there is an adverse effect on the implied freedom arising from this offence-creating provision. And I also accept that the existence of the section is restrictive upon, and distressing to, a number of persons who wish to highlight asserted injustices by way of referring to specific cases. But, considering the polity of New South Wales as a whole, and refusing to fall into the false analysis of regarding the implied freedom as a right reposed in individuals, as I have said I believe that the adverse effect on the implied freedom is a relatively slight one.

118. I also think it relevant to this stage of the analysis that, as I have said, the offence created is not one of absolute liability. Nor is it one that must be dealt with on indictment. Nor is it one that carries a realatively significant maximum penalty (by that I mean, when one compares it to other maximum penalties within our criminal justice system), even when dealt with in the higher courts, and even though it does give rise to the possibility of imprisonment.

119. In my opinion, the benefit sought to be achieved from the section is not outweighed by its effect on the implied freedom, let alone manifestly so.

120. To recap: because I have found the law is suitable, necessary, and adequate in its balance, I find that it is reasonably appropriate and adapted to advance its legitimate purpose.

121. That concludes my staged analysis of the attributes of the section under consideration. It can be seen that I have answered every question posed by the plurality in the affirmative. That leads to the ultimate determination that the section is not constitutionally invalid.

Conclusion

122. In short: I believe that the section does burden the implied freedom of political communication.

123. I believe, however, that it does so only to a relatively small degree.

124. That burden is justified on the basis that the section was enacted for a legitimate purpose.

125. Furthermore, that purpose is consistent with the system of representative and responsible government mandated by the Constitution.

126. I am satisfied that the section is reasonably appropriate and adapted to advance its legitimate protective purpose.

127. I have come to that conclusion based on my finding that the section is suitable, necessary, and adequate in its balance.

128. It follows that I am satisfied that the section is constitutionally valid.

129. Separately, in light of that outcome, I believe that for me to make the different declaration sought by the plaintiffs about the purpose of the section would be inutile. If I be wrong about that, I do not accept that the purpose of the section is confined to that for which the plaintiffs contended.

130. For those reasons, I decline to make any of the orders sought by the plaintiffs, including a declaration of constitutional invalidity. The summons seeking such orders must be dismissed.

Order

131. I make the following order:

1. The summons of the plaintiffs of 8 January 2021 is dismissed.

Costs

132. Although the defendant at least claimed an order for costs if successful, the question of costs was not contingently discussed at the hearing.

133. Accordingly, unless the parties can come to an agreement about costs evidenced by draft consent orders signed by all relevant parties, my Associate will be in touch with the parties in due course to provide them with a timetable and other logistical aspects of the provision of written submissions about the question, with the intention that I shall resolve it in Chambers.

134. An oral hearing will only be conducted if, after the provision of all of those written submissions, a party successfully moves on a notice of motion seeking that mode of resolution. My further order is therefore:

1. Costs of the proceedings before me reserved.

Promulgation

135. Finally, it is true that this judgment pertains to what may become a trial by jury. But that is far off in time, I would have thought, and the contents of this judgment are not self-evidently prejudicial to the interests of the defendants in the criminal proceedings, nor to the prosecution. My judgment deals with an important intersection between constitutional and criminal law. For the time being at least, it should be published to Caselaw shortly, subject to written objection to my Associate by any one of the parties.

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Amendments

16 December 2021 - Coverpage: Counsel was amended

Decision last updated: 16 December 2021