This Saturday marks a year since a boy who suffers from spastic quadriplegic cerebral palsy was taken from the care of his parents. On May 19 last year, NSW police and Family and Community Services (FACS) removed the boy from Newcastle’s Church of Ubuntu.
Section 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (CYPCP Act) allows for the warrantless removal of a child or young person if the FACS secretary or police find the individual to be “at immediate risk of harm.”
However, the boy’s family and members of the church assert that his condition was improving prior to removal due to the alternative therapies the boy had been undergoing, and that traditional western medicines, including vaccinations, had an adverse effect upon his health in the past.
Controversial Facebook posts
Between July 4 and 11 last year, Church of Ubuntu secretary Paul Robert Burton posted a number of messages and videos to his Facebook timeline featuring information about the boy, including his name, treating doctor, condition and the treatment he was undergoing.
Despite being asked by FACS on July 6 to remove the material, Mr Burton did not do so. He subsequently took the posts down after being summoned to the Equity Division of the NSW Supreme Court on July 13 and ordered to.
The Supreme Court issued a suppression order on July 18 that prohibits Mr Burton from publishing the name and any image of the child or the child’s parents, names and images of medical practitioners providing services to the child, or any proceedings in the NSW Children’s Court.
Well-known medicinal cannabis practitioner Dr Andrew Katelaris was also subject to the terms of the suppression order. The doctor is currently being detained at Cessnock prison after being arrested last year, after a quantity of cannabis was allegedly found in his St Ives home.
The charges brought against
On December 21 last year, NSW police laid ten charges against Mr Burton in relation to the Facebook posts in question.
They charged him with four counts of unlawfully broadcasting and publishing the name of child, contrary to section 105(1) of the CYPCP Act. The offence carries a maximum penalty of 2 years imprisonment and/or a $22,000 fine.
Mr Burton was also charged with six counts of recklessly contravening a non-publication order, under section 16(1) of the Court Suppression and Non-Publication Orders Act 2010. The maximum penalty for this offence is 12 months behind bars and/or a fine of $110,000.
The second set of charges relate to two non-publication orders pertaining to the circumstances of the boy who cannot be named made by the Children’s Court on May 25 and 31 last year, under section 7(1) of the Court Suppression and Non-Publication Orders Act.
Fighting the suppression of information
Mr Burton, who describes the Church of Ubuntu as an “all-encompassing multi-faith group,” had been working closely with the boy’s parents in the months leading up to his removal. He’s now mounting a legal challenge against his charges, stating it’s a matter of freedom of speech.
“If a court wishes to apply laws to stop me speaking truth,” Mr Burton explained, “they stand in direct contradiction of their very foundation.”
According to Burton, despite initial warnings, there was no real reason not to make the posts, as a major television network had already broadcast the boy’s name and image, while another individual had posted footage of the boy’s removal onto their Facebook timeline, which had gone viral.
In relation to removing the posts, Mr Burton told Sydney Criminal Lawyers® that he “only refused to comply until” he “was shown formal judicial orders from a court of law,”
Setting a precedent
Mr Burton believes that he and Dr Katelaris are the first people in NSW to have been charged under Section 105 of the CYPCP Act. He explained the section has been used on a number occasions in the past to deter people, but no charges have ever formally been laid under its provisions.
Section 105 of the Act places a blanket ban on publishing the name or identifying information of a child or young person, “who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings.”
The church secretary also believes that a successful challenge against section 105 would “open up the entire closed children’s court, as suppression of information would not be possible.”
The grounds of the challenge
Mr Burton will be appear in court on May 25, when he’ll be presenting arguments to challenge the validity of the charges. He expects that a date will then be set for the Director of Public Prosecutions to respond.
The grounds set out in the notice of motion filed by Mr Burton on April 12 include that his court attendance notice is in breach of section 23 of the Criminal Procedure Act 1986, as it contains more than three similar counts in the indictment.
Mr Burton is also arguing that the charges are a form of double punishment as the equity court had already determined that the action to be taken against him was that he should remove the posts, as well as being required to follow the terms of the suppression order.
Dr Andrew Katelaris is defending five charges laid against him in relation to two videos that were posted on Mr Burton’s timeline, featuring the doctor speaking about the removed boy.
Dr Katelaris is one of a number of Australian medicinal cannabis activists currently facing prison terms for their involvement with the controversial medicine. The doctor was released on bail in January, but subsequently arrested and sent back to prison over a small quantity of cannabis.
Mr Burton visited the doctor in gaol last Sunday, reporting he is “in reasonably good health and spirits” and that he is very pleased with the direction their mutual criminal suppression charge challenge is taking.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.