While the High Court continues to mull over its decision in Momcilovic (transcripts available here, here and here) the justices have handed down another judgment (peripherally, at least) touching on Charter issues. Despite some big issues being raised in argument, Hogan v Hinch is a case where the leading authorities on each point were applied, not reconsidered.
Hinch asked the High Court to rule that a provision allowing courts to issue particular suppression orders was unlawful. He faces charges of breaching such orders. Taking the shotgun approach, his counsel put forward a number of grounds why the provision should be considered invalid. None of the arguments were accepted. The High Court upheld the validity of the legislation, and returned the matter to the Magistrates’ Court.
Jeremy Gans looked into his crystal ball about the outcome of this case more than two years ago. His predictions were correct. Having made various concessions in the course of argument, Hinch will now presumably go back before the Magistrates’ Court for sentencing.
In 2008 broadcaster Derryn Hinch published the names of sex offenders subject to supervision orders after release from prison. In doing so he allegedly breached s 42 of the now-repealed Serious Sex Offenders Monitoring Act 2005. (Incidentally, a very handy introduction to the operation of the legislation that replaces it, the Serious Sex Offenders (Detention and Supervision) Act 2009, by Shaun Ginsbourg, can be found in the February edition of the LIV Journal.)
Hinch’s defence of five criminal charges raised issues of constitutionality and freedom of speech that were uplifted for consideration by the High Court from the hearing in the Magistrates’ Court of Victoria.
Hinch argued that the law allowing judges to prohibit the naming of offenders on extended supervision orders threatens the institutional integrity of State courts vested with Commonwealth jurisdiction, trying to extend the Kable doctrine. The High Court didn’t agree: French CJ at 44 – 46. The joint judgment [Gummow, Hayne, Hayden, Crennan, Kiefel and Bell JJ, at 90] held there was an important distinction between a law that required a court to conduct its business behind closed doors (as in Russell v Russell (1976) 134 CL 495) and one that allows a court to suppress publication of its proceedings if it deems it necessary in the interests of justice to do so.
The Court also didn’t think that a power to prohibit publication in these circumstances amounted to an impermissible suppression of the implied freedom of political communication talked about in Lange v ABC (1997) 189 CLR 520. Although s 42 could (in some circumstances) be burdensome, the Court was satisfied the provision was 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.
The Charter (or as the joint judgement called it, ‘the Human Rights Act’) didn’t play a starring role, but was relegated to being an extra. The Court did engage in a little balancing exercise of certain rights (specifically s 15(3) to reject Hinch’s submission that the suppression provision was strict liability). The plurality confidently rejected the notion that the offence Hinch was charged with was strict in liability. (He had wanted this to be the case to show that the court’s order was over-reaching by applying to the world at large). The Court concluded the offence was one which required a mens rea of acting in breach of the suppression order.