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.
The Facts
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 In doing so he allegedly breached s 42 of the now-repealed Serious Sex Offenders Monitoring Act 2005.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.
The Appeal
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.
(Incidently, that ruling strengthens my opinion about the intent required to breach intervention orders in Victoria, discussed in my post about Police v Beukes).
The HCA's passing ruling that breach of suppression provisions requires full mens rea is certainly interesting. It would have been better if the HCA actually went through a full He Kaw Teh analysis, as the state courts seem to be at odds with the HCA on these matters.That being said, while I agree that the ruling strengthens the case for overturning Beukes, the HCA's reasoning is expressly based on the fact that suppression orders are at large and not served on anyone.FYI, there's a recent interesting case in the ACT on their DVO regime, which is subject to the model criminal code and therefore the fault element is recklessness: R v RH [2011] ACTSC 38. The court there seems to regard a misunderstanding of the meaning of the order as capable of negating recklessness.
Thanks Jeremy. R v RH slipped by me. I'll read it with interest.The modern trend in High Court judgments seems to be a consensus plurality, few dissents, obiter kept to a minimum, examination of previous cases only to the extent necessary to decide the case before them. The benefit of having the Court speaking with one voice probably comes at the cost of avoiding an analysis of issues on which individuals privately disagreed. It's a disciplined approach that's arguably required in a court with both original and appellate jurisdictions, hearing a higher volume of cases than ever before. And no doubt it's a win for law students, lower court judges and practitioners who just want them to get to 'the point'.Still, I do share Don Mathias' view that a lack of elucidation from the highest court in the land can cheat oxygen from discussion and debate about where the law is going next (or cause more confusion about what the scope of the decision was intended to be, as in Dickson). Should the High Court behave like Cabinet? Don linked to an interesting article by Baroness Hale that touches on the issue.
Prof Gans is also right about Hinch looking to pick a fight.David Bennett did the best with the material he was given but the \”febrile rhetoric\” showed how closely the client got into the preparation of his case. One submission said that, \”mere matters of the privacy of a person convicted of a serious sexual offence are so trivial that they cannot possibly be considered ever to outweigh something as important as the right of the public to know what goes on in a court and open justice and matters of that sort. One is weighing a mouse against an elephant.\” Unfortunately for Hinch the HC doesn't share his view that people who have served their sentences should be placed in the stocks and pelted with rotten fruit.The Ch III argument was never going to get up. Russell, Kable, Re Criminal Proceeds Confiscation Act 2002 all show that repugnancy comes from the government of the day trying to treat the judiciary as their rubber stamp. (Even when the NSW's Community Protection Act 1994 appeared to give the court a discretion to make its still nobbling when the law applies to only one person.) A law that gives the court a genuine judicial decision to make is not going to fall foul.I'm surprised Fardon didn't get more attention. It's also about sex offenders but from the opposite end of the telescope. There the HC (except Kirby, if he was still there he'd dissent here as well) held that Kable shouldn't be interpreted to mean that bad or unorthodox legislation has the effect of making state courts unfit for Commonwealth jurisdiction.
Yep, I'm with Dr Man and Don Mat on the crappiness of the current HCA's approach to writing judgments, although I think the problem is exacerbated by the lack of dissents. As is often the case, French CJ here gave a lengthy separate judgment, but it was a concurrence. (He almost never dissents. Apparently, his first HCA dissent was early this year!) Also, as always, the plurality simply ignored the Chief. (What's with that?) When the HCA all agree, you know that (a) they won't explain themselves; (b) there'll just phone in their reasons.One other thing: the decision may still leave the current law open to attack. The new statute's s 182 creates a blanket offence for disclosure, unless there's a court 'publication order'. A publication order can only be given in 'exceptional circumstances'. I still think this will pass muster (note: my crystal ball being correct is a rarity), but the Kable and free speech arguments are somewhat tighter. Should Hinch have another go? Someone give him a liver!
That's Life (someone had to say it)
Cth DPP v Kamal [2011] WASCA 55 nicely sums up a couple of big post-Kable cases. International Finance Trust Co Ltd v NSW Crime Commission and SA v Totani both get a a look over.