Maybe a sex offender won’t be the first person to challenge Victoria’s Serious Sex Offender Monitoring Act. Here’s the alternative:
Victoria Police will investigate whether outspoken broadcaster Derryn Hinch should be charged for revealing the names of two protected sex offenders. The Office of Police Prosecutions (OPP) is referring the matter to police after Hinch named the two men during a rally on the steps of the Victorian parliament on Sunday.
If Hinch is charged, he will simultaneously bring himself within the terms of this provision of the SSOMA:
42(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order…(c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified- must not be published except in the manner and to the extent (if any) specified in the order.
(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty:…120 penalty units or imprisonment for 1 year…
and these Charter provisions:
33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter…. that question may be referred to the Supreme Court…
36(1) This section applies if- (a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) the Supreme Court has had a question referred to it under section 33…
(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.
This development raises two questions, one mildly interesting, one more interesting.
The mildly interesting question is whether a court will make the declaration. Hinch could argue both freedom of expression and protection of children, but you’d have to say that he has the odds stacked against him when it comes to a Charter s7(2) analysis, given the threat of vigilantism posed by… the sort of people who listen the Hinch. Perhaps, there’ll be a narrow interpretation of the words ‘public interest’ in the SSOMA. Perhaps.
The more interesting question is whether a court will, as a matter of discretion,l refuse to even consider making a declaration because of Hinch’s apparent agenda of deliberately breaching the law so that he can be prosecuted under it. Charter s. 36(1) is designed to prevent anyone who feels like it from seeking a declaration; instead, declarations are supposed to be a collateral remedy for people who have brought a legitimate proceeding or have one brought against them. While it might seem unfair to deny any effective remedy to someone who’s facing imprisonment whatever their motivation, denying a declaration might be acceptable given that declarations are exclusively symbolic and have no legal effect. Again, Hinch would seem to be a classic case to develop just such a doctrine. Otherwise, the Charter might trigger a crime wave of would-be political protesters!