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

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

Section 105 imposes an effective but relatively slight burden on political communication because it prohibits a particular form of communication that directly or indirectly identifies a child connected with the statutory child protection system. The burden is justified: the section has the legitimate protective purpose of preserving the privacy and welfare of potentially vulnerable children and families involved in inherently sensitive care proceedings and related processes; that purpose is consistent with representative and responsible government; and the law is suitable, necessary and adequate in balance. No obvious and compelling less burdensome alternative was shown. Section 105 is...

Jurisdiction
Australia
Judgment Date
30 September 2021
Procedural Posture
Supreme Court Summons Seeking Certiorari, Mandamus and Declaratory Relief Concerning Constitutional Validity of S 105 of the Children and Young Persons (care and Protection) Act 1998 (nsw) / Determination of Summons After Local Court Committal Proceedings in Which the Magistrate Held S 105 Was Not Constitutionally Invalid
Outcome
Summons dismissed; costs reserved.
Legal Topics
['implied Freedom of Political Communication' 'structured Proportionality' 'validity of Offence Creating Provision' 'publication of Names and Identifying Information of Children and Young Persons' 'strict Liability' 'care Proceedings' 'judicial Review and Declarations']
['constitutional Law' 'criminal Law' 'child Protection Law' 'administrative Law'] ['implied Freedom of Political Communication' 'structured Proportionality' 'validity of Offence Creating Provision' 'publication of Names and Identifying Information of Children and Young Persons' 'strict Liability' 'care Proceedings' 'judicial Review and Declarations']

Case Brief

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Procedural Posture

Supreme Court Summons Seeking Certiorari, Mandamus and Declaratory Relief Concerning Constitutional Validity of S 105 of the Children and Young Persons (care and Protection) Act 1998 (nsw) / Determination of Summons After Local Court Committal Proceedings in Which the Magistrate Held S 105 Was Not Constitutionally Invalid

Legal Issues

  1. 1 ['Whether s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) burdens the implied freedom of political communication.' 'Whether any burden imposed by s 105 is justified by a legitimate purpose consistent with the system of representative and responsible government mandated by the Commonwealth Constitution.' 'Whether s 105 is suitable, necessary and adequate in balance, and therefore reasonably appropriate and adapted to advance its purpose.' 'Whether the plaintiffs should receive certiorari, mandamus or a declaration concerning the purpose or constitutional invalidity of s 105.']

Ratio Decidendi

Section 105 imposes an effective but relatively slight burden on political communication because it prohibits a particular form of communication that directly or indirectly identifies a child connected with the statutory child protection system. The burden is justified: the section has the legitimate protective purpose of preserving the privacy and welfare of potentially vulnerable children and families involved in inherently sensitive care proceedings and related processes; that purpose is consistent with representative and responsible government; and the law is suitable, necessary and adequate in balance. No obvious and compelling less burdensome alternative was shown. Section 105 is...

Court Disposition

Summons dismissed; costs reserved.

Orders

  • ['The summons of the plaintiffs of 8 January 2021 is dismissed.' 'Costs of the proceedings before me reserved.']