Burton v Director of Public Prosecutions

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

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

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

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