Posted by Kate Ballis
In September 2008, Derryn Hinch was charged in the Magistrates’ Court of Victoria with five counts of contravening suppression orders made under section 42. Mr Hinch’s offences were committed when he named two child sex offenders on his website and at a public victims of crime rally in Melbourne.
Hinch raised a constitutional challenge to the validity of section 42 based upon the propositions that the section:
- impermissibly confers on the courts a function which distorts their institutional integrity contrary to the implied requirements of Chapter III of the Constitution,
- is contrary to an implication in Chapter III of the Constitution that all State and federal courts must be open to the public and carry out their activities in the public, and
- infringes the implied freedom of political communication by inhibiting the ability to criticise legislation and its application in the courts and to seek legislative and constitutional changes and changes in court practice by public assembly and protest and the dissemination of factual data concerning court proceedings.
Open justice and suppression orders
The Court held that the requirement that justice must be administered publicly is not an absolute rule, and that the power under the Serious Sex Offenders Act to make suppression orders was not contrary to any implication arising from the Constitution.
Chief Justice French observed that it is essential that courts sit in public, as this subjects court proceedings to public and professional scrutiny, and helps maintain public confidence in the courts.
His Honour considered that there is, nevertheless, an ‘inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court’. The exercise of this power must, however, be 'justified by reference to the necessity of such orders in the interests of the administration of justice’.
The Chief Justice found that such an order may be made to bind various parties, including media representatives and any person to whom the order is specifically directed. He did not find it necessary to reach a concluded view on the full extent of the power in relation the general public.
Beyond the common law, His Honour held that it is within the power of parliaments, by statute, to authorise courts to restrict publication of parts of a proceeding or the evidence at a proceeding. If the statute leaves it to the court’s discretion to determine whether or not to make an order restricting the publication of evidence or the names of parties or witnesses, those provisions of the statute most likely do not deprive the court of an essential characteristic of their function.
In a separate judgment, Justices Gummow, Hayne, Heydon, Crennan, Kiefel and Bell applied Gibbs J’s principles laid down in Russell v Russell. In that case, Gibbs J stated that there are established exceptions to the general rule that judicial proceedings should be conducted in public, and the category of these exceptions is not closed to Parliament. He said that the issues of secrecy, confidentiality, privacy or delicacy may in some cases be thought to make it preferable for the matter to be held in a closed court (although Parliament cannot require a closed court in all cases of a particular type).
The extent of the freedom of political communication
The Court held that the power under the Serious Sex Offenders Monitoring Act to order suppression orders did burden the freedom of communication about government or political matters, but the law operated in support of the protection of the community by the effective monitoring of released sex offenders.
The test of the implied freedom of political communication involves asking the question: ‘Does the law effectively burden freedom of communication about government or political matters in its terms, operations or effect?’
Chief Justice French considered that the range of matters that may be characterised as 'governmental and political matters' for the purpose of the implied freedom is very broad, and are not limited to matters concerning the current functioning of government. He held that they arguably include social and economic features of Australian society as they are matters potentially within the purview of government.
His Honour found that there may be occasions on which the use of a sex offender’s identity is directly relevant to a point to be made about public administration in relation to serious sex offenders generally, and on that basis, it may be accepted that section 42 has the capacity to burden political communication. However, the object of section 42 is the protection of the community and the rehabilitation of serious sex offenders who are at risk of re-offending after they have completed their sentences. The making of orders under section 42 require the court to consider the public interest in light of the purposes of the Act; on this basis, His Honour concluded that section 42 is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
Justices Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ found that section 42 does not display a 'direct' (as opposed to 'incidental') burden on the freedom of political communication. Their Honours held that situations where the law in question involved no significant burden on the freedom of political communication were cases such as where the law prohibits or regulates a particular type of communication or discussion which is neither inherently political in its nature nor a necessary ingredient of political communication or discussion. Section 42 fell within this 'incidental' category, and therefore was not invalid.
Defences Hinch could have relied on
The Court held that the phrase in section 42(3) 'publish or cause to be published ... in contravention of an order' indicates a requirement of knowledge of that order in contravention of which the publication is made. The Court found that the word 'contravention' is used in the sense of disputation or denial rather than mere failure to comply with an unknown requirement.
Hinch could have therefore argued that he did not know about the suppression order and that he merely failed to comply with an unknown requirement - not that he declined to comply with it or disputed it.
A defence of honest and reasonable mistake of fact may therefore be permitted under section 42(3) of the Act.
Did the type of suppression order affect the decision?
Hinch was charged with contravention of suppression orders made under section 42 after he named two child sex offenders on his website and at a public rally in Melbourne
The Court found that the requirement that justice must be administered publicly is not an absolute rule, and in particular circumstances, a suppression order may be made to bind various parties, including media representatives and any person to whom the order is specifically directed. The Court applied a two limb test to determine whether section 42 was constitutional. This test can be applied to many different laws.
The Court found that the nature of the case required the prohibition of the names of the persons convicted of the sex offences being disclosed. It observed that section 42 could burden freedom of communication about government and political matters, by preventing or restricting public discussion of the supervision or treatment by government agencies or a particular offender whose identity is relevant to discussion.
However, the objects of section 42 were the protection of the community and the rehabilitation of serious sex offenders who are at risk of re-offending after they have completed their sentences - and having regard to the safeguards and limits on the application of section 42, it was a reasonable means of achieving those objects. The section was therefore not unconstitutional.
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