In March this year, the High Court rejected Hinch's challenge to the validity of a provision which permitted suppression orders to be made in proceedings under the Act. Section 42 (3) of the Act created an offence of publication of material in contravention of a suppression order made under s 42(1). Hinch published the names of sex offenders, subject to supervision orders following their release from prison under the Act, on his website and at a protest rally.
The High Court did not accept Hinch's arguments that s 42 was invalid. The grounds of invalidity unsuccessfully raised by Hinch included that s 42 of the Act infringed the:
a) implied constitutional freedom of political communication considered in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; and
b) constitutional implication that all court proceedings must be conducted in public.
In relation to the implied freedom to communicate, the Court held that s 42(3) did not display a 'direct' burden upon that communication and that the section operated in aid of the scheme embodied in the Act. Interestingly, the Court also found that the offence created by s 42(3) was not one of strict liability.
It's worth nothing that Derryn Hinch may well be one of the last Victorians to receive a home detention order. The second reading of the Sentencing Legislation (Amendment of Home Detention) Bill 2011 was moved in the Legislative Assembly on 16 June 2011. The Minister for Corrections highlighted that the government went to the recent election 'with a clear commitment to abolish home detention as part of its law and order policy.'
LEANNE O'DONNELL is a Melbourne lawyer, researcher, writer and volunteer.