Hogan v Hinch  HCA 4 (10 March 2011) Summary
The High Court of Australia has rejected a constitutional challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (repealed). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences and who were subject to post-custodial supervision orders. The High Court found that contravention of a suppression order under the Act required knowledge that the contravention order existed. This was found to be consistent with the obligation in s 15(3) of the Charter of Human Rights and Respnosibilities Act 2006 (Vic) (the Charter), requiring that restrictions on the right to freedom of expression be 'reasonably necessary' to respect the rights and reputation of other persons.
Derryn Hinch was charged with five counts of contravening suppression orders under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (which was repealed with effect from 1 January 2010). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences, who were the subject of post-custodial extended supervision orders under the Act. It was alleged that Mr Hinch had committed these offences when he named the persons on his website and at a public rally in Melbourne.
Mr Hinch challenged the constitutional validity of s 42 on three grounds, resulting in the removal of these questions to the High Court. First, it was argued that s 42 impermissibly conferred upon the courts to which it applied a function which distorted their institutional integrity contrary to the implied requirements of Ch III of the Constitution. Secondly, s 42 was said to be 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. Thirdly, it was submitted that the provision infringed the implied constitutional freedom of political communication.
The challenge to the validity of s 42 failed on all grounds. According to French CJ, s 42 neither offended against any implication derived from Ch III of the Constitution, nor infringed the implied freedom of political communication. The first step taken by French CJ was to find the correct construction of s 42. His Honour stated that this question must be resolved before validity can be determined. French CJ held that construction must begin with the words of the section, and requires reference to their ordinary meaning, their context, the purpose of the Act and that of the section itself. 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. Section 32(1) of 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.
Relevant human rights set out in Part 2 of the Charter include the right to freedom of expression and the right to participate in public life. French CJ found that there are other rights which may be affected by a suppression order, including the right of children to be protected and the right of privacy. Absent clear words, the Parliament should not be taken to have conferred power on the courts to prohibit public dissemination of information in the public domain which is not derived from the proceedings in which the suppression order is made. This is required by the principle of legality and, in the opinion of French CJ, by s 32(1) of the Charter. As a general rule, s 42 did not authorise the court to prohibit publication of the fact that a person of a stated name has been convicted of a serious sexual offence and sentenced to a term of imprisonment (unless, from its context, that fact would reveal that the person had been a party to, or otherwise participated in a proceeding under the Act). French CJ stated that this interpretation of s 42 was consistent with the character of s 42(1)(c) as an ancillary provision, the context and purpose of the Act, the principle of legality and s 32 of the Charter. Consistency with s 32 in this context 'will limit the scope of the power to the minimum interference with freedom of expression'.
In a joint judgment, all the remaining members of the Court considered the requirement for an exercise of power under s 42(1)(c) that the suppression order be 'in the public interest', finding that the question of what is in the public interest has 'more than one dimension'. This additional dimension is provided by the Charter. The majority judgment stated that the phrase in s 42(3) 'publish or cause to be published in contravention of an order' indicates a requirement of knowledge of that order in contravention of which the publication is made. 'Contravention' was found to be used in the sense of disputation or denial rather than mere failure to comply with an unknown requirement. The majority judgment found that this interpretation of s 42(3) also better accommodates the provision in s 15(3) of the Charter respecting reasonably necessary restrictions upon the right to freedom of expression. Similarly, French CJ stated that the words 'must not publish or cause to be published any material in contravention of an order' do not displace the presumption that the alleged contravenor must know of the existence of the suppression order which he or she is said to be contravening. According to French CJ, 'the proposition that the offence is a strict liability offence is singularly unattractive.
The Court ordered that a declaration should be made stating that s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) is not invalid on any of the grounds submitted to the Court. There remains in the Magistrates' Court of Victoria so much of the cause as was not removed to the High Court.
The decision is at www.austlii.edu.au/au/cases/cth/HCA/2011/4.html.
Katherine Cooke is a lawyer with Allens Arthur Robinson