Common(wealth) Knowledge #26: Child Privacy and Political Communication

The implied freedom of political communication revisited in the context of child privacy.

On 30 November, the New South Wales Court of Appeal, the appellate branch of the state’s Supreme Court, unanimously ruled that Section 105 of the Child and Young Persons (Care and Protection) Act 1998 (NSW) (‘Children Act’), which prevents people from publishing the identity of children involved in child protective services matters, did not violate the constitutional principle of the implied freedom of political communication. This decision comes after years of litigation between the NSW government and the appellants, Dr Andrew Katelaris and Pastor Paul Burton, and tests a novel aspect of the implied freedom, which was the focus of Common(wealth Knowledge) #21.

The implied freedom of political communication was accepted by the High Court of Australia in the 1990s, in cases like Lange v ABC (1997), as a constitutional protection of political communication that was implied into the Australian Constitution as a necessary result of Australia’s democratic system. A softer protection of free speech than the United States’ First Amendment, it protects speech about political and governmental matters from being unnecessarily burdened or limited by legislation, with the justification that it would help promote an open and accountable democratic government.

The Children Act governs the child protective services operations of the Department of Family and Community Services (FACS). Chapter 6 of the Children Act, which includes Section 105, applies to Children’s Courts procedures. Subsection (1A)(a) applies Section 105 to all matters involving a “child or young person” who is younger than 25. Under Section 105(1), the name of any such person who is involved in, or is likely to be involved in, any Children’s Court proceedings, or related care proceedings, “must not be published or broadcast in any form that may be accessible by a person in New South Wales” before, during or after the proceedings. This section operates to protect the privacy of the child.

Dr Andrew Katelaris, a doctor who gained a reputation for treating children with medical marijuana, and Pastor Paul Burton, who at the time was a secretary at the Church of Ubuntu and involved with Dr Katelaris through ‘multi-faith group’ activities. The two were charged for breaching Section 105 by making Facebook posts on Dr Katelaris’ page that revealed the name of a person being removed from their family, without a warrant, under Section 43 of the Children Act. They told c that the “removal of the child was unlawful” and that harm was carried out against the child, their family, and others, and that the process was “not evidence-based and without judicial oversight.” These matters have not been resolved, and this article will focus on their challenge that the provision is unconstitutional.

The judgment in the case of Burton v Director of Public Prosecutions [2022] was written by one of the two Justices of Appeal, Kirk JA, to hear the case. Bell CJ and Leeming JA agreed with His Honour’s decision.

Kirk JA reaffirmed that this freedom, though important, was not without limitation. As with other constitutional rights in Australia, the High Court has felt it necessary to develop tests to determine whether legislation ‘unnecessarily burdened’ a constitutional right or protection. Here, the test adopted by Kirk JA was the one used by a majority of the High Court in McCloy v New South Wales (2015). The three-stage McCloy test built upon the two-stage Lange test that was discussed in Common(wealth) Knowledge #21. At paragraph [16], he outlined the three stages of the test:

1. Does the law in question burden the implied freedom?

2. Is its purpose legitimate, “in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative government?

3. If the burden is legitimate, can the manner in which it is “imposed by the law be characterised as justifiable?

That third stage is why this test is described as the ‘proportionality test,’ as it is effectively a balancing act to determine if the burden is a justifiable limitation. There are three parts to this test:

1. “Is the law suitable” for achieving the given purpose?

2. Are there alternatives that would achieve the given purpose without burdening the implied freedom as much, if at all?

3. “Is the law adequate in its balance” by balancing the restrictiveness of the burden against the need for the burden?

Before applying this test, Kirk JA, at paragraph [30], had to determine what it meant for the name to be published. The most literal interpretation of Section 105 would mean “no academic or sporting achievement of a relevant child or young person could be acknowledged publicly,” which he said would be absurd. Therefore, the term ‘publication’ must only apply when there is some connection between publishing the child’s identity and the Children’s Court or care proceedings. It relates to public publication, not publication between individuals.

Another preliminary issue was the matter of consent. Under Section 105(3)(b)(ii), a ‘young person’ can give consent for the prohibition against publishing their name to be overridden. The preceding sub-paragraph, (i), states that ‘children’ cannot give consent, only the Children’s Court can. For the purposes of the Children Act, a ‘child’ is under 16, while a ‘young person’ is between 16 and 18. However, Kirk pointed out an “anomaly,” at [34], that it would appear that a person between 18 and 25 cannot give consent for publication, despite the fact that the prohibition applies until they are 25. As there is “no logic or apparent purpose” for this, he said that people over 18 can also consent. He needed to resolve this matter because it might have affected whether the burden was unjustified, as it was illogical.

1. An effective burden

Moving to the McCloy test, Kirk JA established, at [41], that there was a burden. He said that, because the implied freedom extends to discussion about ‘governmental matters,’ “[t]he constitutional freedom is burdened insofar as people are prohibited from publicly protesting or discussing the removal of particular children by governmental action.” Furthermore, at [42], it would meant that when the parents of the person were publicly criticising the proceedings, they would have to be “careful in how they articulated any such public criticism or discussion,” to avoid naming their child. In addition, at [45], the removal of a child can have “potentially life-altering consequences.”

On the other hand, Kirk JA said, at [46], that the burden is very narrow, because it only affects one “governmental action … [and] it does not prevent criticism or discussion of government policies,” or even the particular action itself, as long as the name of the child is not given. Having resolved the matter of consent, His Honour was of the opinion that the ability of children over the age of 16 to give consent, and the possibility of the media attending proceedings, reinforced this.

1. A legitimate purpose

This is a relatively simple matter. The purpose of Section 105 is to protect the privacy of the child, acting to secure their “best interests” [50]. His Honour referred to Secretary, Department of Family and Community Services v Smith [2017], [49]-[51], where it was said that it is important to minimise any “stigma” and other negative consequences for the person that are likely to result of going through the child protective services system. Finally, at [52], Kirk JA pointed out that cases like the British decision in Scott v Scott [1913], at page 437, had always sought to “guard the interests of the ward or lunatic.”

1. A justifiable burden

It was generally accepted that the provision was justified, with a ‘rational connection’ to the purpose of protecting privacy. Kirk JA, at [57], said that even if one was to argue that it goes too far, because it might not be in the person’s best interest to have their name remain undisclosed if they were mistreated, that is not a question of the suitability of purpose, but one of necessity or balance. Furthermore, at [58], His Honour said that the argument of the defendants that it also has the purpose of protecting the FACS from criticism, would not matter, so long as the best interests of the child or young person were the primary justification.

The defendants made multiple arguments for other “obvious and compelling alternative, reasonably practicable means” that were less restrictive, but these boiled down to making the decision on a case-by-case basis. However, at [61], Kirk JA accepted that while they may be less burdensome, “the identified purpose would not be achieved to the same extent.” Among the issues with the defendants’ proposals are that children and young persons can also be witnesses, so it is unclear how it would apply to them, and the fact that relying on the Children’s Court to make a decision on whether the name should be revealed doesn’t work before the proceedings before the Children’s Court actually commence.

The final element of this test, balance, involves the issue of consent. Because Kirk JA said that people over the age of 25 ought to be able to consent to be identified by name, it was more balanced. However, the primary issue was that it deters criticism of government overreach and prevents accountability. In response, at [70], Kirk JA referred to his earlier statements on how this is only a narrow burden. Furthermore, His Honour said that complaints can be made about how the government has handled certain cases without needing to use the name/s of any children involved.

Quoting Kiefel CJ, Bell, Keane and Nettle JJ in the High Court case of Comcare v Banerji [2019], [38], Kirk JA summarised, at [71], this case by saying:

“It is certainly not the case that ‘the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom.”

Kirk JA, therefore, dismissed the appeal and ordered Dr Katelaris and Pastor Burton to pay the legal fees of the NSW government, because those fees would not be necessary if not for Katelaris and Burton’s appeal. Dr Katelaris took to Facebook to express his anger. It is unclear if he and Pastor Burton will appeal to the High Court.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Burton v Director of Public Prosecutions [2022] NSWCA 242.

Child and Young Persons (Care and Protection) Act 1998 (NSW).

Comcare v Banerji [2019] HCA 23.

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Lange v ABC (1997) 189 CLR 520; [1997] HCA 25.

McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34.

Scott v Scott [1913] AC 417.

Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6.

Elijah Granet’s ‘Better AustLII’