Hogan v Hinch [2011] HCA 4 (10 March 2011)[1]
Derryn Hinch, Melbourne talk back radio host (not to be confused with right-wing ranters from Sydney named by Hinch on his website)[2] had his appeal against the conviction of breaching a name suppression order rejected by the High Court which declared that s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic)[3] was within the judicial power of the Victoria State courts, and was not an impermissible burden on Hinch’s implied freedom of political communication – as described by Derryn Hinch ‘High Court - 7, Hinch – Nil.’[4]
The main purpose of the statute is stated as being “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 charges under s. 42 of the statute for breaching a name suppression order followed Derryn Hinch naming two alleged serial paedophiles during a rally on the steps of the Parliament House organised to present a petition to the Victoria Parliament as part of ‘Name Them and Shame Them’ campaign; the names were also published on Hinch’s website. The change to the law demanded in the petition was that a judge or magistrate cannot suppress the identity of a serious sex offender unless such identification will also identify a victim.
The power to grant name suppression orders is controversial as there are competing interests, such privacy interests of persons charged or convicted of offences as against the public interests of ‘open justice’ and the public interest in identifying persons charged or convicted with serious offences.
Overlaying these interests are those free speech interests of Derryn Hinch, and other citizens, in seeking changes to laws viewed as being morally wrong. As to his conviction, and forthcoming sentencing, Derryn Hinch has been around long enough to know what here was doing and appears willing to accept the consequences with equanimity.[5]
The proliferation of statutes that allow name suppression is of general concern - extending beyond the Sex Offenders Monitoring Act 2005 (Vic), to Crime Commission statues and terrorism related statutes. Not only are name suppression orders authorised by statute, courts have asserted common law powers to order suppression of names and other information. Chief Justice French in Hogan v Hinch describes the recognition by Australian common law of a power to prohibit publication of court proceedings such that “there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice. Such an order may be made to and bind the parties, witnesses, counsel, solicitors and, if relevant, jurors and media representatives, or other persons present in court when the order is made, or to whom the order is specifically directed. It is not necessary for present purposes to reach a concluded view on the full extent of the power in relation to the general public.”[6]
We trust in the judiciary have due regard to the public interest of open administration of justice and the freedom of expression of the media and the general public to discuss the administration of justice. In the United Kingdom the so-called ‘super-injunctions’ are used to gag the media (the injunction orders follow Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 (HL), which first extended the effect of the orders to “…anyone else with notice of this order”). These super-injunctions are being issued by the U.K. at rate of up to three a month – such that courts may eventually run out of three letter combinations of the alphabet with which to disguise the name of litigants.
While individuals speaking at a rally on the steps of the Parliament House have limited freedom of speech in which to defy judicial orders; there is a class of protestors that have a greater freedom of speech - Parliamentary privilege is included in the 1689 Bill of Rights, which states: "Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
In a question to the U.K. House of Commons during a Commons business debate by John Hemming MP on 10 March 2011. Mr Hemming said: “In a secret hearing, Fred Goodwin has obtained a super-injunction preventing him being identified as a banker”; the speech remains available for viewing on YouTube.[7] Sir Fred Goodwin being the former CEO of the Royal Bank of Scotland.
With the open administration of justice, to the extent of publication of decisions of the Queen’s Bench Division online, the relevant decision confirming the grant of the suppression order can be identified;[8] but not the reason why Sir Fred Goodwin does not want to be identified as a banker when he clearly is a banker.
In 2011 a committee of judges headed by Master of the Rolls Lord Neuberger is to publish the findings of an inquiry into super-injunctions, and the U.K . Government is expected to consider them in a Bill on defamation and libel law. The report of the inquiry should also be of interest in Australia to the extent it provides guidance as to the exercise of common law judicial powers to grant suppression orders.
[4] Hinch says (Thursday, March 10, 2011) http://www.hinch.net/hinch-says-2011/March/10-03-11.1.html
[5] Hinch says (Thursday, March 10, 2011) http://www.hinch.net/hinch-says-2011/March/10-03-11.1.html
[6] Hogan v Hinch [2011] HCA 4 [26].
