By Richard Ackland
It's the second time that the High Court has had a significant disagreement with the broadcaster Derryn Hinch.
Yesterday a full complement of seven judges unanimously rejected Hinch's contention that in contravention of Victorian legislation he should be allowed to name and shame paedophiles and rapists subject to extended supervision orders after they had served their sentences.
In 1987 the High Court upheld a finding of contempt against Hinch in relation to a paedophile priest, Father Michael Glennon, the director of the Peaceful Hand Youth Foundation.
Hinch had named Glennon, had given details of his previous convictions and had mentioned the suspicion that there were other children who had been his victims – all after the priest had been committed for trial.
To no avail Hinch argued his broadcasts were in the "public interest". The High Court upheld his conviction for contempt and the Human Headline did porridge for 12 days.
Hinch is an extraordinary character in the pantheon of journalism. He's plied the craft for 50 years, as an editor, foreign correspondent, broadcaster, TV personality and radio broadcaster. He's irrepressible, but not in that right-wing, demagogue style we get on Sydney commercial radio.
He's got his obsessions, and paedophiles and "serial rapists" are among them. He likes to see them named and shamed, so the public knows those likely to reoffend and where they live. He says this is not as a result of his own molestation as a youngster but because he has become the "lightning rod and fly paper" for victims.
Apart from the Victorian justice system and the police in recent years, the Human Headline has also been battling liver cancer.
His most recent courtroom excursion concerns sex offenders subject to continuing supervision orders whose names had been suppressed by the County Court of Victoria. On June 1, 2008, Hinch named two of them at a public protest rally on the steps of the Victorian Parliament. He also named them on his website, hinch.net.
Consequently, the broadcaster faced five charges for breaches of the suppression order made under the Serious Sex Offenders Monitoring Act, which carry maximum penalties of $60,000 in fines and up to five years in jail.
In one sense it is a curious piece of legislation because its scheme allows for the protection of serious sex offenders, those with a stronger chance of reoffending, and not the less serious criminals in this category of crime.
Hinch assembled a strong legal team of Melbourne media lawyer Nicholas Pullen, who instructed the former solicitor general David Bennett, and pro bono they rode off to the High Court to argue two constitutional points.
First, the legislation that empowers the court to suppress part of the proceedings is invalid. It is contrary to an implication in the constitution that courts must be open to the public and carry out their proceedings in public. To do otherwise diminishes the "institutional integrity of the judiciary".
Second, this suppression is contrary to the implied freedom of political communication because it inhibits the ability of the electorate to criticise legislation and its application in the courts.
Nice try, but it just didn't wash. Observers who sat through the oral arguments in November last year suspected it wouldn't. At one point Bennett was delving for open court principles from the Old Testament. In the Book of Judges, he said, "one of the judges, Deborah, sat under a palm tree and administered justice, apparently openly. There is also reference to it in the Book of Ruth . . . "
Bennett was just getting onto some high-flown sentiments from Jeremy Bentham when Justice Bill Gummow cut in: "We know all these things, Mr Bennett. We are not first-year law students."
Counsel for the Solicitor for Public Prosecutions in Victoria observed that "none of these authors from the Old Testament were speaking about sex crimes against children".
The court said yesterday the requirement that justice be administered openly was not an absolute rule and that suppression orders were not repugnant to the "institutional integrity of the judiciary". The courts are required to take notice of the "public interest" when deciding to suppress part of the proceedings, but as we know there's a lot of flexibility in that concept.
As to the implied freedom-of-political speech the judges accepted that the legislation did "burden" freedom of communication about government or political matters. However, there was a competing interest, namely the "protection of the community by the effective monitoring of released sex offenders".
Part of Hinch's argument was that by suppressing the names of serious offenders undergoing continuing monitoring, the community's interests were not protected. There was a hope, an expectation, that even with a few minority reasons from the court a toehold could be established and built on, so that suppression orders generally became much scarcer.
Yesterday Hinch said: "The full bench decided seven-nil that the laws covering suppression orders of serial rapists and paedophiles are constitutional. In layman's language it is business as usual. So I guess Melbourne remains the suppression capital of Australia."
justinian@lawpress.com.au
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