FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
DETECTIVE SENIOR CONSTABLE HOGAN INFORMANT
AND
DERRYN HINCH DEFENDANT
Hogan v Hinch [2011] HCA 4 10 March 2011 M105/2010
ORDER
Declare that s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) is not invalid upon any of the grounds asserted in submissions to this Court.
Representation
G J C Silbert SC with B L Sonnet and P D Herzfeld for the informant (instructed by Solicitor for Public Prosecutions Victoria)
D M J Bennett QC with G Slater for the defendant (instructed by HWL Ebsworth Lawyers)
Interveners
S J Gageler SC, Solicitor-General of the Commonwealth with A M Dinelli intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell SC and A J Sefton intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor Western Australia)
R J Meadows QC, Solicitor-General for the State of Western Australia with S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with J K Kirk intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hogan v Hinch
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State courts vested with federal jurisdiction – Section 42(1) of Serious Sex Offenders Monitoring Act 2005 (Vic) ("Act") allowed court to make "suppression order" preventing publication of evidence given, contents of documents adduced or information that might enable identification of offender in proceedings under Act, if court satisfied it is "in the public interest" to make order – Section 42(3) made publishing material in contravention of suppression order an offence – Defendant charged with publishing material identifying offenders in proceedings subject to suppression orders – Whether power conferred by s 42(1) impermissibly diminishes institutional integrity of State courts – Whether and to what extent there exists implication derived from Ch III that State and federal courts must be open to public and carry out activities in public.
Constitutional law (Cth) – Implied freedom of political communication – Whether s 42 of Act impermissibly burdens implied freedom of political communication – Whether communication by defendant was communication about government or political matters – Whether implied freedom limited to communications about government or political matters at Commonwealth level – Whether s 42 reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hogan v Hinch [2011] HCA 4
Case
[2011] HCA 4
Decision Date
CaseChat Overview and Summary
In *Hogan v Hinch*, the High Court of Australia considered a challenge to the constitutional validity of section 42 of the *Serious Sex Offenders Monitoring Act 2005* (Vic). The case involved a defendant charged with contravening suppression orders made under this section, which prohibited the publication of information identifying certain sex offenders subject to ongoing supervision. The core dispute concerned whether the power to make such suppression orders impermissibly infringed upon fundamental legal principles and constitutional rights.
The High Court was required to determine two primary legal issues. Firstly, whether the power conferred by section 42(1) of the Act impermissibly diminished the institutional integrity of State courts vested with federal jurisdiction, particularly in relation to the implied constitutional requirement that courts be open to the public. Secondly, the Court had to consider whether section 42 impermissibly burdened the implied freedom of political communication, and if so, whether it was reasonably appropriate and adapted to serve a legitimate end compatible with representative and responsible government. The Court also considered the interpretation of section 42 in light of the *Charter of Human Rights and Responsibilities Act 2006* (Vic) and the principle of legality.
The Court reasoned that while section 42 had the capacity to burden political communication by potentially restricting public discussion of government supervision of offenders, it was not invalid on that ground. The majority held that the provision, when properly construed, was reasonably appropriate and adapted to serve the legitimate ends of community protection and offender rehabilitation, which were the stated purposes of the Act. The Court emphasised that the making of suppression orders under section 42 required a judicial consideration of the public interest, balancing the purposes of the Act against established principles such as open justice, common law freedom of speech, and Charter rights. The Court found that the limits on the application of section 42, and its relationship to existing legal powers, made it a reasonable means of achieving its objects, satisfying the test for the implied freedom of political communication.
Consequently, the High Court declared that section 42 of the *Serious Sex Offenders Monitoring Act 2005* (Vic) was not invalid on any of the grounds asserted by the defendant.
Orders
Orders of the court
Declare that s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) is not invalid upon any of the grounds asserted in submissions to this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
It is conceivable that a suppression order, authorised under s 42, could have the effect of preventing or restricting public discussion of the supervision or treatment by government agencies of a particular offender whose identity and personal history is relevant to that discussion. On the other hand, as Hayne J observed in APLA Ltd v Legal Services Commissioner (NSW)[96]:"in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication". That observation may indeed be an answer to the submissions made on this issue on behalf of Mr Hinch in so far as the identification of offenders might be used as a rhetorical device. It may be, however, that there are occasions on which the use of the offender's identity is directly relevant to a point to be made about public administration in relation to serious sex offenders generally. On that basis it may be accepted that s 42 has the capacity to burden political communication. Properly construed, however, the section is, in my opinion, reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution. Its objects are the protection of the community and the rehabilitation of serious sex offenders who are at risk of re-offending after they have completed their sentences. Having regard to the limits on the application of s 42, properly construed, and its relationship to long-established common law and implied powers, it is a reasonable means of achieving those objects. It is not applied absolutely. The making of orders under s 42 requires consideration by the court of the public interest in light of the purposes of the Act, the open-court principle, the common law freedom of speech and the freedom of expression referred to in the Charter. In my opinion the provision satisfies the second limb of the Lange test. [96](2005) 224 CLR 322 at 451 [381]; [2005] HCA 44.Conclusion For the preceding reasons, the challenge to the validity of s 42 fails. I agree with the order proposed in the joint reasons. Section 1(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic) ("the Act") states the "main purpose" of the statute. It is:"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."Section 1(2) of the Act states:"In outline this Act –(a)defines the class of sex offender to whom it applies; and(b)empowers the Supreme Court or County Court to make an extended supervision order of up to 15 years in respect of an eligible offender on the application of the Secretary to the Department of Justice; and(c)gives functions to the Adult Parole Board in relation to giving instructions or directions in respect of an extended supervision order and supervising offenders who are subject to such an order; and(d)provides for the suspension, review and renewal of extended supervision orders."
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ