Hogan v Hinch

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ.,Gummow,Hayne,Heydon,Crennan,Kiefel,Bell JJ.
• Judgment Date: 10 March 2011
• Neutral Citation: 2011-0310 HCA A,[2011] HCA 4
• Docket Number: M105/2010
• Date: 10 March 2011

[2011] HCA 4

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel And Bell JJ

M105/2010

Detective Senior Constable Hogan

Informant

and

Derryn Hinch

Defendant

Representation

G J C Silbert SC with B L Sonnet and P D Herzfeld for the informant (instructed by Solicitor for Public Prosecutions Victoria)

D M J Bennett QC with G Slater for the defendant (instructed by HWL Ebsworth Lawyers)

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with A M Dinelli intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell SC and A J Sefton intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor Western Australia)

R J Meadows QC, Solicitor-General for the State of Western Australia with S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with J K Kirk intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))

Hogan v Hinch

Constitutional law (Cth) — Judicial power of Commonwealth — Constitution, Ch III — Institutional integrity of State courts vested with federal jurisdiction — Section 42(1) of Serious Sex Offenders Monitoring Act 2005 (Vic) (‘Act’) allowed court to make ‘suppression order’ preventing publication of evidence given, contents of documents adduced or information that might enable identification of offender in proceedings under Act, if court satisfied it is ‘in the public interest’ to make order — Section 42(3) made publishing material in contravention of suppression order an offence — Defendant charged with publishing material identifying offenders in proceedings subject to suppression orders — Whether power conferred by s 42(1) impermissibly diminishes institutional integrity of State courts — Whether and to what extent there exists implication derived from Ch III that State and federal courts must be open to public and carry out activities in public.

Constitutional law (Cth) — Implied freedom of political communication — Whether s 42 of Act impermissibly burdens implied freedom of political communication — Whether communication by defendant was communication about government or political matters — Whether implied freedom limited to communications about government or political matters at Commonwealth level — Whether s 42 reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government.

Statutory interpretation — Principle of legality — Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) — Interpretation of s 42 of Act in manner compatible with civil and political rights in Charter.

Words and phrases — ‘open justice’, ‘political communication’.

Constitution, Ch III.

Serious Sex Offenders Monitoring Act 2005 (Vic), s 42.

ORDER

Declare that s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) is not invalid upon any of the grounds asserted in submissions to this Court.

French CJ.

Introduction

1 Derryn Hinch is a radio broadcaster and is responsible for a website designated ‘HINCH.net’. In September 2008 he was charged in the Magistrates' Court of Victoria with five counts of contravening suppression orders made under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (‘the Act’) in the County Court at Melbourne. The suppression orders prohibited publication of any information that might enable the identification of certain persons, convicted of sex offences, who were the subject of post-custodial extended supervision orders under the Act. Mr Hinch's offences were said to have been committed when he named the persons on his website and at a public rally in Melbourne.

2 By way of defence to the charges, Mr Hinch raised a constitutional challenge to the validity of s 42 based, inter alia, upon the propositions that the section:

• 1. impermissibly confers upon the courts to which it applies a function which distorts their institutional integrity contrary to the implied requirements of Ch III of the Constitution;

• 2. is contrary to an implication in Ch III of the Constitution that all State and federal courts must be open to the public and carry out their activities in public; and

• 3. infringes the implied freedom of political communication by inhibiting the ability:

  • (a) to criticise legislation and its application in the courts; and

  • (b) to seek legislative and constitutional changes and changes in court practice by public assembly and protest, and the dissemination of factual data concerning court proceedings.

3 On 30 July 2010, Hayne, Crennan and Bell JJ ordered, pursuant to s 40(1) of the Judiciary Act 1903 (Cth), that so much of the cause pending in the Magistrates' Court of Victoria as concerned the validity of s 42 be removed into this Court.

4 In my opinion, for the reasons that follow, s 42 did not offend against any implication derived from Ch III of the Constitution. Nor did it infringe the implied freedom of political communication. The challenge to its validity must fail.

5 The first question in considering Mr Hinch's challenge is: What is the correct construction of s 42? It is only when that question is answered that validity can be determined. Construction begins with the words of the section 1. It requires reference to their ordinary meaning, their context, the purpose of the Act and the purpose of the section. The principle of legality will favour a construction which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech 2. The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) also imposes an interpretive requirement that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights 3.

An outline of the Act

6 The Act, which was repealed with effect from 1 January 2010 4, authorised the Supreme Court and the County Court of Victoria to make extended supervision orders whereby persons convicted of certain sexual offences for which custodial sentences have been imposed could be subject to post-custodial supervision. Section 42 empowers those courts to make suppression orders in connection with proceedings under the Act.

7 The stated main purpose of the Act is 5:

‘to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community.’

The purposes governing the conditions which can be attached to an extended supervision order are 6:

• ‘(a) to ensure that the community is adequately protected by monitoring the offender;

• (b) to promote the rehabilitation, and the care and treatment, of the offender.’

8 The Act empowers the Secretary to the Department of Justice to apply to a court for an extended supervision order in respect of an ‘eligible offender’ 7. An ‘eligible offender’ is defined, inter alia, as any person who is serving a custodial sentence in respect of a ‘relevant offence’ 8. ‘Relevant offences’ are those listed in the Schedule to the Act 9. Applications for such orders can be made to the Supreme Court or to the County Court, depending on which of them was the original sentencing court 10. At least one assessment report made by a psychologist, psychiatrist or other prescribed health service provider, after a personal examination of the offender, is required to accompany an application 11.

9 Section 11(1) provides that a court can only make an extended supervision order in respect of an offender if satisfied:

‘to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.’

In RJE v Secretary to the Department of Justice12 it was held that ‘likely to commit’ means ‘more likely than not to commit’. The Act was amended in 2009 to provide that a court could be satisfied that an offender was ‘likely to commit’ a relevant offence on the lower threshold of a risk which is ‘real and ongoing’ and ‘cannot sensibly be ignored’ 13.

10 The order commences when the offender has completed the service of his or her custodial sentence 14, including any period served on parole 15. The nature and purpose of an extended supervision order suggests that an application for such an order will be made as the offender's custodial sentence draws to a close.

11 Mandatory conditions which attach to every extended supervision order 16 include requirements that the offender attend at any place as directed by the Secretary or the Adult Parole Board 17 for supervision, assessment or monitoring and not commit any relevant offence. The offender is required to give the Secretary prior notice of any proposed change of name or employment, and must not move to a new address without the prior written consent of the Secretary. Part 4A of the Act prohibits an offender from making a change of name application in Victoria or elsewhere in Australia without the prior written approval of the Adult Parole Board 18. The offender cannot leave Victoria without the permission...