Hinch’s challenge

A prediction of mine (and kinda-sorta another) came true today. The Age reveals:

Broadcaster Derryn Hinch plans to launch a Supreme Court challenge against five charges of breaching suppression orders by naming two pedophiles. Hinch’s barrister Peter Faris, QC, told a Melbourne court today his client would challenge the validity of the suppression orders made in the Supreme Court. Mr Faris said Hinch would claim the law under which he had been charged was in breach of Victoria’s charter of human rights and responsibilities. Hinch would also claim it had removed his right of freedom of speech, the freedom of the press and to the system for open courts.

Hinch was charged after he named the sex offenders at a public rally in June and named them in an article on his website. Police later charged Hinch with having published or cause to be published material which identified an offender in contravention of suppression orders made in 2007 and this year. Mr Faris described as “somewhat farcical” that the Department of Justice would now have to apply to the County Court to have the suppression orders varied so the case against Hinch can proceed. Prosecutor Lisa Mendicino told Melbourne Magistrates Court that the Director of Public Prosecutions was not a party to the making of the suppression orders and therefore could not vary them. Hinch said outside court he believed that what he had done was “morally right” and that the court would decide whether he was legally right or wrong. Magistrate Sarah Dawes adjourned the charges until November 20 to allow Hinch’s lawyers to be supplied with the police brief.

And here’s the Hun:

BROADCASTER Derryn Hinch says he was morally right to publicly name pedophiles despite facing criminal charges for it. Hinch today faced court for allegedly breaching court orders banning the names of convicted sex offenders being released to the public. His lawyer Peter Faris QC told Melbourne Magistrates’ Court his client would take his fight against the five charges to the Supreme Court. The charges allege breaches of County Court suppression orders protecting the identities of two pedophiles that have been released from prison. He is accused of publishing their names on his website http://www.hinch.net and announcing their identities at a protest rally in June this year. Mr Faris told the court he would be launching a Supreme Court challenge to the validity of the orders his client is charged with breaching, saying they were not made in the public interest. He said the charges were a breach of the Human Rights Charter as they removed his client’s right to free speech and the openness of the courts. Hinch was supported in court by wife Chanel and crime victims’ advocate Noel McNamara. Outside court Hinch said he felt what he had done was morally right but it was now up to the courts to decide if it was right or wrong. Magistrate Sarah Dawes adjourned the case to November.

The relevant law that Hinch will challenge is this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005:

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- (a) that any evidence given in the proceeding; or (b) that the content of any report or other document put before the court in the proceeding; or (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.

(2) An order under this section may be made on the application of a party or on the court’s own initiative.

(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty: 500 penalty units in the case of a body corporate; 120 penalty units or imprisonment for 1 year or both in any other case.

Back on 1 June 2008, the Sunday Age described me as saying that a judge was likely to rule that provisions of the SSOMA are incompatible with the Charter. I didn’t exactly say that, but I certainly did think a challenge was on the cards:

Mr Gans said offenders were likely to challenge such an order under the charter and a judge was likely to agree that it posed a problem.

Alas, I was speaking of orders to confine sex offenders and challenges by said offenders – such a challenge may well be on-foot, not that there’s any publicity about it – rather than challenges by people who don’t like sex offenders and want to tell the world about whether or not such orders have been made (not to mention the identity of the offenders.)

However, two days later, when the story of Hinch’s naming of two offenders broke – and before he was even charged – I predicted that he might make a challenge too, on free speech grounds. (I thought protection of children too. I wouldn’t have predicted a challenge based on open courts, given the narrow terms of Charter s. 24(3).) To be clear, I didn’t predict that he would succeed in that challenge. Indeed, I questioned whether the courts might refuse to make a declaration of inconsistent interpretation on discretionary grounds. The actions of Hinch, whose Wikipedia page describes his accounts of being both a victim and an (unwitting) perpetrator of child sex offences (in radically different circumstances), and whose words were amongst those suppressed by the Supreme Court’s Underbelly ruling,  smack of a deliberately planned challenge to the laws. Perhas he is counting on his health woes to keep him out of prison.

The articles above suggest that Hinch will challenge the ‘order’ too. He couldn’t use the conduct mandate, because a court making an order isn’t acting in an administrative capacity (is it?) and therefore isn’t a public authority bound by the conduct mandate. Perhaps he could challenge the charges, as the OPP is a public authority. Or he’ll try to use the interpretation mandate to argue that s42 should be re-read in a way that makes the order ultra vires?

Hinch’s constitutional free speech argument adds a new wrinkle, and would clearly allow a direct challenge to the order itself, but the argument faces the additional burden of showing that the law impinges on political communication. Good luck with all that. That burden doesn’t exist under the Charter’s right to free expression. However, whereas constitutional success would leave Hinch a free man, a Charter declaration would have no legal effect. But it would make a lovely memento while he’s tried and, perhaps, sentenced and punished. I wonder if the Supreme Court provides the option of a framed commemorative certificate of the order? 

Seriously, I am very enthusiastic about the idea of challenging the courts’ contempt powers. But such challenges are legally difficult given the Charter’s limitations and also most likely doomed given the Supreme Court’s own love affair with its broad suppression powers. Moreover, this particular challenge is about as unappealing as such a challenge can get, given the risk of vigilantism and the associated risks not only to the offenders themselves, but to future victims if they are driven away from their ‘treatment’ or ‘supervision’. It’s a no-hoper, but it’ll be a fun ride.

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