Hinch was charged in 2008 with contravening orders made in 2007 and 2008 by the Victorian County Court under s 42 of the Act. (The statute was subsequently repealed and replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
The orders prohibited publication of any information that might enable identification of certain convicted sex offenders (the subject of extended supervision orders). The orders reflected s 42(1)(c) of the Act, which empowers Victorian courts to make such orders where they are satisfied that it was "in the public interest" to do so. The complementary s 42(3) created an offence of publication of material in contravention of a suppression order made under s 42(1).
The same orders authorised provision of information to CrimTrac, the national offender database manager, for entry on the Australian National Child Offender Register. That provision reflected the primary objective of the Act, "to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community". The expectation is that such supervision will occur within a formal legal framework and involve the state rather than an individual journalist. Accountability matters.
The 2008 charges followed statements made by Hinch on his personal site and at a public rally in Melbourne. In July questions about the validity of s 42 went to the High Court. There were intervenors from the Commonwealth, NSW, Qld, SA and WA.
Hinch's representatives argued that there were three grounds for holding that the section was invalid.
Firstly, they sought to draw implications from Chapter III of the Constitution, ie that s 42 impermissibly diminished the institutional integrity of Victoria's courts.
Secondly, suppression orders made under s 42 were contrary to an implication from Chapter III that all state and federal court proceedings must be conducted in public.
Thirdly, s 42 was invalid because it infringed the implied constitutional freedom of political communication, inhibiting the ability of people to criticise legislation and its application in the courts to seek legislative and constitutional changes and changes in court practice by public assembly and protest, and the dissemination of factual data concerning court proceeding.
Unsurprisingly, the Court disagreed and declared that s 42 was not invalid upon any of those grounds.
It noted that the requirement for public administration of justice is not an absolute rule. In what one student described as a "smackdown" it unanimously held that the power under the Act to make suppression orders was not contrary to any
implication arising out of Chapter III of the Constitution. The s 42 requirement that the Victorian courts consider "public interest" when deciding whether to make a suppression order ensured that the power did not render those courts inappropriate repositories of federal judicial power under Chapter III.
The Court accepted that s 42(3) did burden the freedom of communication about government or political matters. However, the Court held that the law operated in support of the broader scheme embodied in the Act, namely, the protection of the community by the effective monitoring of released sex offenders. Properly construed, the section was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. The section was accordingly not invalid on this ground.
The Court recognised that s 42 was concerned with the conduct of proceedings under the Act, rather than with identifying a particular individual as having committed or having been convicted of an offence. A court in considering s 42(3) would look to the facts, referring to the whole of the publication and any other relevant evidence in deciding whether the intention in publishing someone's name was to disseminate information that might enable identification of an offender or another person who has appeared or given evidence in the proceeding under the Act.
The High Court justices stated that the orders do represent -
an infringement upon the open-court principle and it is in part on that basis that their validity and that of s 42 is attacked. It is necessary, therefore, to consider the nature and scope of the open-court principle.French CJ went on to comment that -
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
It was submitted for Mr Hinch that s 42 conferred a function upon the Supreme and County Courts incompatible with their character as courts capable of exercising the judicial power of the Commonwealth pursuant to Ch III of the Constitution. His specific complaints in summary were:He concluded, after discussing Lange v Australian Broadcasting Corporation [1997] HCA 25 and Coleman v Power [2004] HCA 39 - two key implied right of political communication cases, that -
1. The section empowers a court, without any limitations or safeguards, to abrogate the open justice principle.The complaints are not sustainable. There are limitations upon the power to make suppression orders under s 42. Such orders must be made according to law. Their operation does not extend beyond what s 42, properly construed, permits. They cannot impose a general prohibition on the publication of material in the public domain unless that publication might have the prescribed effect of enabling a given person to be "identified" in the limited sense already explained. The "public interest" consideration does not authorise the court to act upon its whim. It directs the court to attend to the main purpose of the legislation and the stated purposes of extended supervision orders. It necessarily requires attention to be directed to the open justice principle and the common law freedom of speech as well as the Charter. ...
2. The section empowers a court to make decisions having a bearing on public safety, without providing reasons.
3. There is no mechanism for appeal or review of a suppression order under s 42.
The making of an order under s 42 is a judicial function. It is a significant decision which must be made having regard to the public interest. It imposes restrictions upon freedom of speech and infringes the open-court principle. As appears below, it is amenable to review or appeal. In the ordinary course a judge making such an order, other than a short-term "holding" order, should give reasons for so doing. A suppression order made in association with an extended supervision order, even if, as in this case, qualified by words such as "until further order", cannot thereby be immunised from any obligation to explain it on the basis that it is merely interlocutory. There is an express requirement that a court making a decision in relation to an extended supervision order must state the reasons for its decision and cause them to be entered into the records of the court. Reasons for making the extended supervision order should ordinarily incorporate the reasons for any associated suppression order.
There is nothing in the Act which authorises or requires an application for an extended supervision order to be conducted in camera. Any order to that effect would have to be an exercise of inherent jurisdiction, implied power or a general statutory power outside the Act. There is nothing in the Act to prevent media organisations seeking, in the ordinary way, to apply to be heard in proceedings under the Act in relation to any proposed suppression order. If the proceedings are conducted in the County Court, then they are subject to review for jurisdictional error or error of law on the face of the record. A media organisation affected by a suppression order would have standing to seek such review in the Supreme Court. It is true that a media organisation given leave to intervene in extended supervision order proceedings in the Supreme Court is not granted any right of appeal under Pt 3 of the Act. That Part only provides for appeals by offenders and by the Secretary against the making, or refusal to make, an extended supervision order. However, an appeal lies to the Court of Appeal from any determination of the Trial Division of the Supreme Court constituted by a judge of the Court unless otherwise expressly provided by any Act. That a media organisation affected by a suppression order will generally have standing in an appellate court to challenge that order by way of appeal, does not seem to be in doubt.
None of the specific complaints advanced on behalf of Mr Hinch relating to the operation of s 42 are made out.
50. It is conceivable that a suppression order, authorised under s 42, could have the effect of preventing or restricting public discussion of the supervision or treatment by government agencies of a particular offender whose identity and personal history is relevant to that discussion. On the other hand, as Hayne J observed in APLA Ltd v Legal Services Commissioner (NSW): "in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication".
That observation may indeed be an answer to the submissions made on this issue on behalf of Mr Hinch in so far as the identification of offenders might be used as a rhetorical device. It may be, however, that there are occasions on which the use of the offender's identity is directly relevant to a point to be made about public administration in relation to serious sex offenders generally. On that basis it may be accepted that s 42 has the capacity to burden political communication. Properly construed, however, the section is, in my opinion, reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution. Its objects are 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. Having regard to the limits on the application of s 42, properly construed, and its relationship to long-established common law and implied powers, it is a reasonable means of achieving those objects. It is not applied absolutely. The making of orders under s 42 requires consideration by the court of the public interest in light of the purposes of the Act, the open-court principle, the common law freedom of speech and the freedom of expression referred to in the Charter. In my opinion the provision satisfies the second limb of the Lange test.
