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

Supreme Court New South Wales

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: