Australia: Brace yourselves: Derryn Hinch has parliamentary privilege

The new Senate promises to be a grand spectacle — not least as its resident entertainers will include the Cicciolina of Australian politics, the Human Headline Derryn Hinch. We are grateful to the electors of Victoria for visiting Derryn's peculiar set of personal obsessions upon the national polity.

Derryn is famous for various forms of behaviour all involving the prefix "self", including three separate convictions for contempt of court arising from his predilection for publicly naming people whose identities the criminal courts had ordered to be suppressed.

Derryn's election to Parliament, the bulliest of all pulpits, raises a tantalising prospect: what will Derryn say once he's ensconced on the red leather of the crossbenches? Even a vague awareness of the concept of parliamentary privilege should cause the unwary voter to wonder about just what we're about to see unleashed.

A hefty clue to Derryn's intentions is in the following exchange with radio host Neil Mitchell on 3AW during the election campaign:

Mitchell: Under parliamentary privilege — maiden speech — you can't be interrupted, you can do what you like. Would you name names?

Hinch: If I have to, I will.

Mitchell: Well get'em right. Because you've got parliamentary privilege, if you go ahead ...

Hinch: No of course you could. I wouldn't get them wrong in the street. I mean ...

Mitchell: You got Graeme Kennedy wrong.

Hinch: No, I didn't.

Mitchell: Oh you did. You said he died from AIDS.

Hinch: No, I did not. I said he died of pneumonia and an AIDS-related illness.

Mitchell: Was that true?

Hinch: I believe it was.

Mitchell: You still believe it was true, despite all the evidence to the contrary?

Hinch: Yes.

Mitchell: That's my point. We want more than Derryn's belief, we want facts if you're going to use parliamentary privilege.

Hinch: If I'm using parliamentary privilege, it will be fact. I mean the register I'm calling for is only for convicted criminals. The ones I named and did five months of house arrest over, they were convicted criminals who had their names suppressed and people had a right to know who they were. And if I have to do it to save some kids, yes I will do it.

Mitchell: You'll put the Parliament above the courts.

Hinch: The courts get it wrong.

Mitchell: Of course they do, and so do you at times. Do you really think that you can change that by what you do in Parliament?

Hinch: I think I can save kids in Parliament, yes.

I have to admit, listening to one shock jock cross-examine another set up a cognitive dissonance that is still ringing in my brain. Anyway, the guy who can make Neil Mitchell sound like the Voice of the Rule of Law and Reason is the one we just elected.

[Rundle: Derryn Hinch and the end of democracy]

So, we know that Derryn has more faith in his own ability to protect public safety than in that of the criminal courts of Victoria. And he appears unconcerned by the risk that he might get his facts wrong, bolstered by his insistence that he would only ever consider naming a convicted.

Except that that's not quite true. While Derryn's conviction in 2011 did come from his naming of two convicted sex offenders, in 1987 he was sentenced to 12 days in prison for publicly naming a priest who was charged with indecent assault on a minor during his trial; and in 2014 he spent 50 days in jail after breaching a suppression order by revealing the criminal history of the man who had raped and murdered Jill Meagher.

The messy unreliability in Derryn's track record of public naming and shaming gives a fair taste of what we might expect once he's in Parliament. Is there anything to stop him or slow him down?

The short answer is "no". Parliamentary privilege is the ultimate irony in a legal system (ours), which does not treat free speech as a human right and that allows Parliament to infringe upon our residual freedom almost at will. The irony is that it was Parliament itself that asserted free speech as a cornerstone right when it finally achieved dominance over the monarchy; it's just that Parliament only gave the right to itself.

History lesson: in 1688, England embarked upon its Glorious Revolution, forcing the Catholic King James II to abdicate and inviting in his place the Protestant William of Orange to take the throne jointly with his wife as William III and Mary II.

Part of the deal with William was his recognition that the long-running battle between monarchy and Parliament over who was really running the country was over, and Parliament had won. This was in part enshrined in the Bill of Rights 1689, an Act of Parliament that is still in force. Article 9 of the Bill of Rights provided simply "That the freedom of speech and debates or proceedings in Parliament ought not be impeached or questioned in any court or place out of Parliament."

That's parliamentary privilege, and Article 9 is still the law in Australia. The freedom of speech that it gives to members of Parliament is absolute; simply, they can say whatever they like in Parliament and they cannot be sued for defamation or prosecuted for contempt. They can dive as far as they like into the cesspit of rumour, innuendo, outright lies and gross slander, with impunity.

The public policy rationale for the absolute privilege is that democracy needs the safety valve of a forum where the truth can be aired without risk of sanction from an over-reaching judiciary or executive. It's justified as a key element in the system of checks and balances that allow each arm of government to keep the others in line.

[Crikey's bias-o-meter Part V: the shock jocks]

Of course, the policy assumes that members of Parliament will exercise their privilege with responsibility. Mostly, they do. Sometimes, they don't.

Democracy, as we learn more and more these days, is a fragile thing. If a senator enters Parliament intending to use the privilege invested in him for the purpose of placing his own judgement, and by extension the power of Parliament itself, above the fully informed determinations of the courts, then he tips the balance in a profound manner. Parliament becomes the ultimate arbiter of legal rights and wrongs.

This isn't a minor legalistic quibble. It may seem a simple enough matter to Derryn to publicly identify convicted sex offenders in defiance of the courts' determination that that should not occur (which they tend to do mainly to protect the identities of the offenders' victims); he's demonstrated by his actions that he struggles to see any difference between that and naming an accused person before they've been convicted, or prejudicing an accused's trial by revealing their past crimes, in flagrant disregard of the fundamental sub judice principle. What will he think of the laws made by state parliaments, which also prevent identification in cases of child sex assaults? Will he choose to treat them with the same contempt he apparently has for the courts?

Derryn's persona of knockabout, "common sense" irresponsibility is obviously attractive to many voters; it got him into Parliament. It'd be great if, once he's there, he does another thing he told Neil Mitchell he'd be trying out: listening before he speaks.

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