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Burton v Director of Public Prosecutions (NSW)

Burton v Director of Public Prosecutions (NSW)

Case [2021] NSWSC 1230 30 September 2021

Constitutional Validity

Implied Freedom of Political Communication

Strict Liability

Constitutional Law

Type to search within this case.

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

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.
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.

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Burton v Director of Public Prosecutions (NSW)

Details

AGLC: Burton v Director of Public Prosecutions (NSW) [2021] NSWSC 1230
Case: [2021] NSWSC 1230
Decision Date: 30 September 2021

CaseChat Overview and Summary

Burton v Director of Public Prosecutions (NSW) was a case in which the High Court of Australia was required to determine the constitutional validity of a statute that prohibited the publication of the names of children and young persons connected with care proceedings. The central dispute was whether this prohibition constituted an unconstitutional burden on the implied freedom of political communication under the Commonwealth Constitution. The appellant, Burton, argued that the law was invalid as it placed a slight burden on political communication without sufficient justification.

The legal issues before the Court were twofold: whether the law imposed an unconstitutional burden on political communication, and if such a burden was justified under the Constitution. The Court applied the structured test for the validity of laws that burden the implied freedom of political communication, considering the nature of the burden, the extent to which it was justified by a legitimate communication purpose, and the proportionality of the burden to the purpose. The Court needed to determine whether the law's objective of protecting the privacy and welfare of children and young persons in care proceedings was a legitimate communication purpose and whether the burden imposed on political communication was proportionate to that purpose.

The Court found that the impugned law imposed a slight burden on political communication, but this burden was justified. The law was characterised by reference to its legitimate protective function, which aimed to prevent the identification of children and young persons involved in care proceedings, thereby avoiding the risk of irreparable damage. The Court noted the inherently sensitive nature of the subject matter and the high likelihood of harm without the prohibition. Despite the law being an offence of strict liability and carrying a criminal penalty, the Court concluded that the burden was justified by the statute's protective purpose. The Court also considered the quantitative analysis of persons likely to be affected, concluding that severance of the offending provision was not possible. Consequently, the offence-creating provision was held to be constitutionally valid.

Orders