: Human headline silenced for 5 months

Human headline silenced for 5 months

Leanne O'Donnell

Media identity Derryn Hinch aka @humanheadline tweeted 
on 20 July:

Big day tomorrow. Back to Austin for blood tests and condition update. Then Mag. Court 11a.m. for sentencing. #liver

On 21 July 2011, Magistrate Rozencwajg sentenced Hinch to five months home detention, the conditions of which included a ban on gainful employment, media appearances and use of social media such as Facebook and Twitter. The decision to impose a home detention order was due to the Magistrate considering Hinch's fragile health, as he received a liver transplant only two weeks before the court appearance.

This sentence marked the end of a long court battle with Hinch having first been charged in 2008 for contravening orders under the now repealed Serious Sex Offenders Monitoring Act 2005(Vic) ('the Act').

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.

(2011) 36(3) AltLJ 212
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