ALQ December 2022 Constitutional Law

Issue: December 2022

Constitutional Law

Amended committal procedures held to be constitutionally valid

Access the decision:  Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211

The plaintiff is the subject of committal proceedings in the Local Court of NSW under Ch. 3, Pt 2 of the Criminal Procedure Act 1986 (“the CP Act”). The plaintiff filed a summons seeking a declaration that the scheme for committal proceedings under the CP Act, as amended in 2017, was inconsistent with the institutional integrity of the Local Court and, accordingly, invalid by reference to the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The summons was removed to the Court of Appeal. 

Prior to 2017, in NSW, a magistrate conducting a committal proceeding was required to have regard to the prosecution evidence first and to discharge the accused if that evidence was not capable of satisfying a reasonable jury as to the commission of the offence. If the prosecution evidence were sufficient to satisfy that test, the magistrate was then required to consider all of the evidence and, if satisfied that “there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence”, commit the accused for trial.

By legislative amendments in 2017, the function of assessing the sufficiency of the prosecution case was removed. At the same time, an obligation was imposed on the prosecutor to file a “charge certificate”, in which the prosecutor must certify that “the evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person”. If that requirement (amongst others) is met, the Local Court is obliged to commit the accused for trial in a higher court.

The Court of Appeal rejected the plaintiff’s constitutional argument, holding that the legislature has removed the function of assessing the sufficiency of the prosecution evidence from the committal procedure. Whilst the prosecution must certify the sufficiency of the evidence, the act of committal to trial does not adopt that assessment or “rubber-stamp” the decision of the executive. The plaintiff’s argument assumed that the pre-2017 function of assessing the capacity of the evidence to support the charges remained a function of the Court. 

The plaintiff has sought special leave to appeal to the High Court. 

Publication restriction in the Care Act held to be compatible with the implied freedom of political communication

Access the decision:  Burton v Director of Public Prosecutions [2022] NSWCA 242

In an application for leave to appeal (and concurrent appeal) from a first-instance decision of the Court, the appellants challenged the constitutional validity of s. 105 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), which prohibits the publication of the names of children and young persons in certain circumstances, on the basis that it impermissibly burdens the implied freedom of political communication. The appellants argued that the section stifles criticism of child protection decisions by the State and creates an unjustified burden on the freedom. The Attorney General accepted that there was a burden on the freedom but submitted that the purpose of the law is legitimate and the burden justified.  

The Court of Appeal granted leave to appeal but dismissed the appeal on the basis that the burden which s. 105 imposed on the implied was justified. The Court held that there was a “not insignificant, but limited” burden on the freedom. In doing so, the Court rejected a literal interpretation of the section which would have prohibited the publication of the names of children involved in care proceedings in any context. Further, whilst the definition of “young person” only refers to a person aged between 16 and 18, the Court construed references to young persons in the section such that persons up to the age of 25 could consent to publications which would otherwise be contrary to the section. The Court also held that the section had a legitimate purpose (the protection of privacy) and imposed a justified burden, notwithstanding that there was a restriction in the manner of criticism of government. There was no obvious or compelling alternative to the section. Accordingly, the section was constitutionally valid.

Other decisions in this issue


Last updated:

29 Dec 2022

We will use your rating to help improve the site.
This field is required
Please don't include personal or financial information here
This field is required
Please don't include personal or financial information here

We acknowledge Aboriginal people as the First Nations Peoples of NSW and pay our respects to Elders past, present, and future. 

Informed by lessons of the past, Department of Communities and Justice is improving how we work with Aboriginal people and communities. We listen and learn from the knowledge, strength and resilience of Stolen Generations Survivors, Aboriginal Elders and Aboriginal communities.

You can access our apology to the Stolen Generations.

Top Return to top of page Top