Broadcaster Derryn Hinch has appeared before the High Court of Australia seeking to overturn charges against him relating to his public "outing" of sex offenders.

In September 2008 Hinch was charged with five offences pursuant to the now repealed Serious Sex Offenders Monitoring Act 2005 (Vic) (Act). Charges were brought against Hinch in the Magistrates' Court after he named two sex offenders at a public rally in June 2008, and published the men's names on the internet in contravention of a suppression order that had been made in the County Court of Victoria.

A hearing before the Magistrates' Court in February 2010 was adjourned after Hinch sought to argue that the legislation governing suppression orders was constitutionally invalid.

The High Court of Australia subsequently agreed to hear Hinch's constitutional arguments.

The relevant parts of the Act provided that the court, if satisfied it is in the public interest to do so, may order 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might enable an offender or another person who has appeared or given evidence in the proceeding to be identified, must not be published except in the manner and to the extent (if any) specified in the order. It is also stated that a person must not publish or cause to be published any material in contravention of an order under the Act.

The issues to be determined by the High Court turned on whether the relevant parts of the Act are constitutionally invalid. Hinch argued that the relevant parts of the Act are:

  • repugnant to an implication in the Constitution that State courts must exercise their judicial power in a manner that does not diminish the institutional integrity of the judiciary
  • contrary to an implication in the Constitution and the common law principle that courts must be open to the public and carry out their activities in public
  • contrary to the implied freedom of political communication in that they:
    • inhibit the ability to criticise legislation and its application in the courts
    • seek legislative and constitutional changes via amendments in court practice and the release of factual data concerning court proceedings.

The increased use of suppression orders in Victoria1 has attracted recent criticism, including from retired Victorian Supreme Court Judge Philip Cummins, who cautioned against their growing use, emphasising such orders should be limited to those cases where they were a necessity. Although the Standing Committee of Attorneys-General has endorsed model provisions harmonising the laws of suppression and non-publication orders, his Honour expressed concern that these model provisions, if enacted, could further encourage the use of suppression orders.

Suppression orders have also been a significant issue in a recent dispute between the Victorian Police and publisher Hardie Grant. Victoria Police threatened the publisher with legal action after it published the names of four people who were the subject of a suppression order in a "tell all" book about police corruption. Hardie Grant removed the book from sale in Victoria, however objected to Victoria Police's arguments, stating that the information, the subject of the suppression order, was now available to the public through such websites as Austlii.

We will update you further once the High Court of Australia hands down its decision in Hinch's case.

1. A conference in Melbourne last week on jury reform was told that between early 2006 and June 2008, Victoria had 627 reported suppression orders, whereas NSW had just 54.

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