MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friends, MR B.L. SONNET and MR P.D. HERZFELD, on behalf of the informant. (instructed by Solicitor for Public Prosecutions)

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR G. SLATER, for the defendant. (instructed by HWL Ebsworth Lawyers)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth: If the Court pleases, I appear with MR A.M. DINELLI for the Attorney‑General of the Commonwealth intervening under section 78B of the Judiciary Act. (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, Solicitor‑General for the State of Western Australia): May it please the Court, I appear with my learned friends, MR R.M. MITCHELL, SC and MR A.J. SEFTON, on behalf of the Attorney‑General for Western Australia. I am also instructed to appear with my learned friend, MR S.A. McDONALD, on behalf of the Attorney‑General for South Australia. (instructed by State Solicitor’s Office (WA) and Crown Solicitor for South Australia)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.K. KIRK, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland: May it please the Court, I appear with my learned friend, MR G.J.D. del VILLAR, for the Attorney‑General for Queensland intervening. (instructed by Crown Law (Qld))

MR W. BABECK: Your Honours, my name is Wolfgang Babeck.
I am a solicitor admitted in New South Wales, in England and Wales and in Germany. I hold a doctorate in constitutional law. I am seeking leave to make submissions as amicus curiae on behalf of the Australian German Lawyers Association. Federal German courts, including the Constitutional Court of Germany, have in the past rendered deliberations under German law on a number of aspects related to this case. I have summarised these findings in a submission and I assume it will be of interest to the Court to read those. If your Honour wishes, I can now also briefly elaborate on the viewpoint of German courts. (instructed by Dibbs Barker)

FRENCH CJ: Thank you. No, I do not think that will be necessary.

MR BABECK: If not, I am happy to hand up our written submissions and rely on those only.

KIEFEL J: The German Constitutional Court and the German Constitution recognises the particular rights of personality which are not so well known to our legal system.

MR BABECK: That is correct, yes.

KIEFEL J: The Constitution acknowledges some rights of freedom of the press and, as I understand it, the Constitutional Court has particular methods for the way in which it goes about balancing the various rights, which are the norms of the Constitution.

MR BABECK: That is exactly the case.

KIEFEL J: This is very interesting, but it may be questionable whether or not it has a direct bearing upon the matters for our hearing.

MR BABECK: Most certainly. I do not want to make any comments on this particular case. I only set out in my submissions what the German viewpoint is.

FRENCH CJ: Thank you, Dr Babeck. Having regard to the absence of any prior notice to the parties and interveners and having regard also to the subject matter of the submission, the Court would not be assisted by receiving the amicus submissions. Yes, Mr Bennett.

MR BENNETT: May it please the Court. Your Honours, the matter removed involves two separate constitutional questions which arise in relation to the validity of the provisions of the Victorian legislation. The first is a Kable implication, or perhaps a more general implication from Chapter III of the Constitution about open justice and the second is the implied freedom of political communication. I propose to deal with those two subject matters in that order.

In relation to the implication from Chapter III, I propose to deal first with general constitutional principles following from Kable and then with the application of that, those principles to open justice and the importance of open justice. The starting point of this jurisprudence is the decision of this Court in Kable v Director of Public Prosecutions 189 CLR 51. At page 115 of the report, Justice McHugh said this at point 7:

It is axiomatic that neither the Commonwealth nor a State can legislate in a way that might alter or undermine the constitutional scheme set up by Ch III of the Constitution.

There are then some examples given and there is then a reference to the Commonwealth v Queensland where it was:

held that it is implicit in Ch III that a State cannot legislate in a way that has the effect of violating “the principles that underlie Ch III”.

Your Honour Justice Gummow at page 133 referred to the decision of the United States Supreme Court in Mistretta and the familiar passage that:

“The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action.”

Here, of course, the functions of the court are being borrowed to make the courts into something which we say is different from a court. Something which is not totally in public. Then:

The appellant submits, and I accept, that such reasoning is particularly applicable where, as here, the Act draws in the Supreme Court of a State as an essential and determinative integer of a scheme –

which is then described and that will be submitted as effectively what occurs here. At page 143 in your Honour’s judgment, your Honour, in discussing section 109 of the Constitution in the paragraph again at point 7 of the page, said:

A State law which, during the operation of an investment of federal jurisdiction in this way, would alter or impair the operation of the Judiciary Act by removing a condition or characteristic of a court such as the Supreme Court, which is essential to the investiture, is an attempt to alter or impair the operation of the federal law.

We will be submitting that any attempt to detract from the principle of open justice falls within that. I will not take your Honours to all the subsequent cases in any detail, but it is worth noting that in Fardon, where Kable was distinguished, that is Fardon v Attorney‑General (QLD) (2004) 223 CLR 575, at page 614, where your Honour refers again to the “repugnancy doctrine” of Kable, and again at the bottom of the page to:

the nature of the process for which the Act provides assumes particular importance. This process may ameliorate what otherwise would be the sapping of the institutional integrity of the Supreme Court.

Here we will be submitting that the nature of the process and the absence of appeal and so on is of importance and the exception, the interests of justice, we will be submitting is too wide an exception. We will be submitting the exceptions are limited to cases where it is necessary in the interests of justice and extreme cases such as national security or life and death which perhaps can be brought under that rubric, but certainly not mere matters of privacy or that sort of thing.

At pages 656 to 658, it is interesting to note that in the judgment of Justices Callinan and Heydon at paragraph 220 there was this statement which ultimately resulted in validity in that case:

The forms and procedures prescribed by the Act bear the hallmarks of traditional judicial forms and procedure.

We would say to take away the public nature of information before a court is to remove an essential hallmark of traditional judicial forms and procedure.

The next case I can deal with even more briefly – that is, the North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. In paragraph 29, at page 163 in the judgment of the plurality of six members of the Court, there was this passage in paragraph 29:

The second step in the Legal Aid Service’s argument is that it is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be –

We stress the words “and appear to be” –

an independent and impartial tribunal. That proposition, which again appears in the passage from Ebner, also should be accepted.

Ebner, of course, was the case on de minimis judicial financial interests in shares.

FRENCH CJ: Given the breadth of the discretion conferred upon the court by section 42, of which in part you complain, how does the section affect the independence and impartiality or appearance thereof of the court?

MR BENNETT: Your Honour, in the same way as the conferral of a power on the Court did in Kable. This is a conferral of a power on a court. Because of the width and because it goes beyond what we say are acceptable exceptions it is to make the court into something less than a court, something which is not an appropriate receptacle. It violates one of the most basic principles of what a court is.

FRENCH CJ: Why should not the public interest criterion, or indeed even if you did not have the words “public interest” in there the word may import a principle of restraint, having regard to the desirability of open justice affecting the exercise of the discretion and therefore the construction of the section?

MR BENNETT: It does, your Honour, but that restraint does not go far enough. It is interesting to see what has happened in Victoria in relation to that matter. There is a decision in a case called ARM v Secretary to the Department of Justice, giving the neutral citation which, I think, is the only one, [2008] VSCA 266, and in that case the court needed to consider the meaning of various words in this legislation and in the course of discussing the relevant factors, at paragraph 36 the court seemed to see the policy behind this provision as protecting the privacy of the person convicted. Paragraph 36 says:

A supervision order is not and is not intended to be a punishment. An offender such as the appellant who has served all the sentence of imprisonment imposed on him for his offending is taken to have discharged his debt to society. Subject to extraordinary statutory exceptions of the kind constituted by the Act –

that is the various supervision provisions –

he is as free as any other member of society to live lawfully without unwanted publicity or intrusions upon his or her privacy.

That is apparently the basis –

Evidently, it is in the public interest that police and correctional authorities be aware of the identity and whereabouts of an offender the subject of an extended supervision order. That is the principal justification for the profound intrusion upon the liberty of the subject for which the legislation provides. But, as at present advised, it appears to us to be less clear that there is any public interest in further unwanted disclosures of an offender’s identity or whereabouts.

So much for open justice.

HAYNE J: What exactly is the challenge that you are making to those propositions, Mr Bennett? I understand you read them and you say they are wrong. What is the error in them?

MR BENNETT: The error in them, your Honour, is that mere matters of the privacy of a person convicted of a serious sexual offence are so trivial that they cannot possibly be considered ever to outweigh something as important as the right of the public to know what goes on in a court and open justice and matters of that sort. One is weighing a mouse against an elephant.

CRENNAN J: Do you accept that a court can sometimes make an exception in relation to the principle of open justice on the basis that what is sought is to prevent victimisation of a witness?

MR BENNETT: Yes, your Honour, that is within the exception that we fully acknowledge of the interests of justice requiring it because a victim may not come forward otherwise and may not give evidence. A person convicted of a serious sexual offence does not have too much choice about whether the matter comes to court or not. That is why there is a totally different principle in relation to the victim and the offender and that principle may extend in some cases to cases where the offender and the victim have the same name.

CRENNAN J: Is there a possibility, in relation to this extraordinary statute, that the continued supervision takes place in a context where victimisation might be a possibility?

MR BENNETT: Your Honour, even if it is, that is insufficient. There is a discussion in one of the cases I will take your Honours to which echoes a remark in our submissions about the risk of vigilantism, which we of course point out that there has never been a case of vigilantism in Australia as far as anyone knows, but in any event, what we submit is that what leads to vigilantism and self‑help is matters such as closed courts and members of the public not knowing what is going on. That is far more likely to lead to it than the public knowing the names of a sex offender.

HAYNE J: Sorry, you say “knowing the names of a sex offender”. Can I just understand what exactly you mean by that proposition? The offender concerned has been dealt with by the courts for the offence, is that right?

MR BENNETT: Yes, your Honour.

HAYNE J: That offender was dealt with in public?

MR BENNETT: Yes, your Honour.

HAYNE J: In circumstances where the offender’s name ordinarily, subject to certain exceptions, can be published?

MR BENNETT: Subject to this legislation, yes.

HAYNE J: No, not subject to this legislation. At the time of conviction and punishment for the offence concerned, unless the offender bears the same name as the victim, which engages other considerations, the offender’s name is publicly available and can be published, can it not?

MR BENNETT: We submit it should be, your Honour. This legislation prevents it.

HAYNE J: No, at the time of dealing with for the offence, Mr Bennett.

MR BENNETT: Prior to conviction, yes, your Honour, although there may be questions of sub judice and other issues arising there which are in the interests of justice, but up to the moment of conviction I suppose the sub judice rule would probably protect it, and from the moment of conviction the simultaneous order would protect it so there is not a gap. As we understand ‑ ‑ ‑

HAYNE J: You will need to take me through the provisions of the Act which you say work that result. You may be right. I am not saying that you are wrong, but you need to take me through the provisions of the Act that would work the result that a person charged with a sex offence and convicted, until completion of sentence, cannot be the subject of publicity.

MR BENNETT: He certainly cannot if an order is made from the moment of conviction. Up to the moment of conviction it would depend on the common law contempt rules. It would normally of course be a jury case.

FRENCH CJ: How is one of these orders made other than in the context of the application of an extended supervision order? I thought that is the context in which the suppression order arises and that only arises in the context of potential release or completion of the custodial term.

MR BENNETT: It arises at the time of sentence your Honour. One could not publish the name while he or she is in gaol and one cannot publish the name after the person dies. It is suppressed.

HAYNE J: It is not evident to me, I am afraid, Mr Bennett – you will need to take me step by step through this – how a person falls within the definition in section 4 of the Act of being an eligible offender, unless that person is at the time a person who is then serving a custodial sentence which refers to a time, I would have thought, after conviction, but perhaps I am wrong.

MR BENNETT: I will take your Honours to that in due course. The only other case I needed to mention to your Honours on the constitutional aspect is Hogan v Australian Crime Commission (2010) 240 CLR 651. The only matter I wish to remind your Honours of in that case is the passage at paragraph 31 where, in the context of section 50 of the Federal Court Act which refers to:

prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth –

as being required before a suppression order is made, the Court makes the fairly clear proposition that:

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more those characteristics.

Now, that is in the context of discussing section 50 and it is not specifically in the context of discussing its constitutionality, but it is of relevance in showing the limits imposed by section 50 which we submit are what make it a valid provision unlike the provisions before the Court here.

In relation to open justice generally we will have a document which is being printed at the moment which sets out a list of judicial and non‑judicial statements about the importance of open justice. It is, of course, something which has a very long history. We have even found reference to it in the Old Testament in the Book of Judges, Chapter 4:4 where one of the judges, Deborah, sat under a palm tree and administered justice, apparently openly. There is also a reference to it in the Book of Ruth, which I will not take your Honours to, at the end of the book.

It is a very longstanding principle of justice and one of the best statements is a statement made by Mirabeau in 1790 in the context of the French Revolution where he made this statement – and I am reading a translation because my pronunciation – your Honours might have trouble if I were to attempt to read it in the original French – but what he said was:

Give me whatever judge you will – partial, corrupt, my enemy even, if you must; these things will trouble me little, so long as what he does, he is only able to do it in the face of the public.

That is an enormously powerful statement. Jeremy Bentham in 1843 said:

Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity.

GUMMOW J: We know all these things, Mr Bennett. We are not first year law students.

MR BENNETT: No, I know, your Honour. That is why I am not going to go through the pages of the document. It was just those ‑ ‑ ‑

FRENCH CJ: Nor do we have a predisposition to the closed conclaves.

MR BENNETT: Yes. That is so, your Honours. It is noteworthy that this courtroom has been very carefully designed to have a large public area, as is appropriate.

FRENCH CJ: Mr Bennett, can I just take you back for a moment to the way in which this particular statute works. That is what we are concerned about. The application for an extended supervision order can be made in respect of a person who is then an eligible offender. An eligible offender is somebody who has been sentenced and is serving a custodial sentence, is that not right?

MR BENNETT: Yes, that is so, your Honour. As I understand it, the order is normally made at the time of sentence or immediately after. That is not required but it is part of the process of sentencing in normal cases.

FRENCH CJ: Is that the case with the orders that we are concerned about here?

MR BENNETT: I will have that checked, your Honour.

HAYNE J: You assert confidently that this is part of the ordinary process. That comes to me as a bit of a surprise, Mr Bennett. I would be glad of any record or other material that might demonstrate it to be part of the ordinary process.

MR BENNETT: Your Honour, we endeavoured to obtain a note to get that by subpoena and we failed but the ‑ ‑ ‑

HAYNE J: No, Mr Bennett. Do go on.

MR BENNETT: If your Honour pleases. There is a statement in Hansard, your Honour, to the effect that at the time the statement was made in every case but one a suppression order had been made and that is of significance, we would submit.

HAYNE J: My immediate question, Mr Bennett, is when are these applications made? You assert that they are commonly made at the time of initial sentence of an offender. I ask you, what is the basis upon which that assertion is made? I am, as I say to you, a little surprised by it.

MR BENNETT: Your Honour, there is not evidence of that matter before the Court.

BELL J: Even if that were the case, if you go to section 42, in proceedings before the court under the Serious Sex Offenders Monitoring Act:

the court, if satisfied that it is in the public interest . . . may –

make orders with respect to the non‑publication of certain evidence or information. But I think the question that is being raised is this. If an offender is convicted of a sexual offence, it is not evident from the scheme of section 42 that there is a preclusion on publishing the fact of the conviction, the detail of the sentence, or indeed, the facts upon which the conviction was based. Section 42 is concerned with matters in evidence on the application before the court for the extended supervision order, which would include, for example, the assessment report. The scheme of the legislation, for practical purposes, places some strong incentives in the way of a convicted sex offender consenting to being assessed by a psychologist, or psychiatrists or other health professional, for the purpose of the preparation of the report.

The report, one might reasonably expect, would contain details of an essentially private nature and it is material of that character in reports tendered in the proceedings which may be the subject of the exercise of the discretion if the court considers it to be in the public interest. A number of your submissions seem to carry with it a notion that the entire information relating to the fact of the sentencing of the person for the sexual offence and all that follows from that may be suppressed. It is not evident why that would be so.

MR BENNETT: Well, your Honour, section 42(1)(c) refers to “information that might enable an offender”, inter alia, “to be identified” and that seems to be the nature of the orders made in this case. We are charged with publishing their names.

BELL J: In connection with proceedings before the court brought under the Serious Sex Offenders Monitoring Act.

FRENCH CJ: The position is pretty clear, Mr Bennett. When you look, for example, at the kind of information that might be contained in an assessment report in support of an extended supervision order, that includes participation by the offender in rehabilitation programs. There is also, under section 10, a 25 working day period which must pass after the application is made before it is heard. None of this is consistent with the notion that you would make an ESO application at the time of sentencing for the offence. This appears to be a distinct process under which the court assesses the question whether there is a high probability that the offender will commit another relevant offence unless under supervision.

MR BENNETT: Under section 5, the court to which the application by the secretary is made, is normally, but not always, the court that sentenced the offender, if it is a Supreme Court or the County Court and it is the County Court if the offender was sentenced in the Magistrates Court and the order can be made at the end of a custodial sentence.

KIEFEL J: It would seem, to take up the points made by the members of the Court, from section 11(1) itself that the court in making or considering to make such an order is considering the likelihood of re‑offence if released. So it is looking at a person having served so much of their sentence and having undertaken the assessments and having reports available to be in a position to consider what might happen if they were released. This is very unlikely to, almost impossible for this to occur at the time of sentence itself.

MR BENNETT: I think the examples in the case removed book rather demonstrate that is what occurred. I will have that checked.

KIEFEL J: What would be the need for a supervision order if a person is to be imprisoned?

MR BENNETT: There is not any, your Honour, until the person is – the supervision order takes effect, clearly, when the person is released from prison. It would not have any effect in prison. The point we make is that it results in suppression of publication by the press of what has occurred in open court and the name, the importance of the name becomes more significant when I get to the arguments about freedom of political communication.

FRENCH CJ: All of this question about the separation between the sentencing process in relation to an offender and the application for an extended supervision order in which context the question of suppression orders arise goes back to the point which, I think, was put to you by Justice Hayne, that in respect of the conviction and sentencing of the offender there is no restraint on publication and none which would be affected by a suppression order which goes to the question of the proceedings in an application for an extended supervision order. In other words, the offender’s name may have been out and about in the public arena for years before one of these applications is made.

MR BENNETT: That is certainly possible, your Honour.

FRENCH CJ: Together with the facts of the offence and the fact of the conviction. So it is just to put the suppression order in context that we are sort of asking those questions.

MR BENNETT: Yes. Your Honour, that does not make it any better.

FRENCH CJ: No, but it is important to understand the scope of the suppression order and what it is really directed to.

BELL J: It does have some impact on an aspect of your submissions taken up, for example, at paragraph 52.ii which is the suggestion that the purpose of the scheme embodied in section 42 is to facilitate a cost‑effective way for the government covertly to release serious offenders into the community rather than providing funding for special accommodation and so the submission goes on.

MR BENNETT: Yes.

BELL J: Rather than seeing it in that way, one might see that in the ordinary way a person convicted of a sexual offence is convicted in an open court, there is the usual publicity attending that, including as to the length of the sentence that the person receives. At the expiration of the length of the sentence, a matter that anyone can work out since it is a simple arithmetic calculation, the understanding would be that the person would be released back into the community free of any restraint. It may be that, in fact, by reason of a suppression order they are released back into the community subject to the special monitoring arrangements that the Act makes provision for, but it would hardly – in those circumstances, one does not see the force of the contention that you articulate in paragraph 52 and elsewhere in the submissions.

It is not that the public is deprived of information concerning the sentencing of sexual offenders. That is in the public domain, as far as I can see. Certainly section 42 does not seem to trench on it. What it may do, in the case in which a court exercises the discretion in the public interest to prevent publication of aspects of the evidence in relation to the monitoring application, is that the public may not know the identity of a person of whose release into the community they would be aware, may not know that steps have been taken to monitor them.

MR BENNETT: Your Honour, first, it is not necessarily a simple arithmetic matter of working out when a person is released because that involves many other considerations in the criminal justice system which can result in the sentence served being shorter than that initially referred to. It may in a particular case be some time before the end of the sentence, but the public cannot know that. They cannot know that the person about whom specific matters were found at a trial is a person who has now been released into the community.

BELL J: But section 42, and an order made pursuant to the exercise of that discretion, does not bear on the matter that you just raised.

MR BENNETT: It does if the name is suppressed, your Honour. This becomes of more importance when one talks about the freedom of political communication, but it becomes necessary if one wants the press to be informed when it discusses issues concerning release into the community, issues concerning the success or otherwise of rehabilitation, issues concerning recidivism and matters of that sort; indeed, even issues concerning the extent to which the prosecutor at a trial correctly referred to prior convictions.

CRENNAN J: But cannot all those matters be discussed without naming people?

MR BENNETT: Well, your Honour, that is an issue discussed in a number of the cases, and I will take your Honours to this. It is an inadequate way of discussing the issues, particularly when they are political issues.

CRENNAN J: What is inadequate about it?

MR BENNETT: Well, your Honour, it is far more dramatic to say to the public, “This is what the notorious sex offender, John Smith, did to a seven year old on this occasion and now look, he is released into the public with his name being suppressed”. That has some persuasive force. It is has more persuasive force than saying there are people who are released who have committed serious offences. To the extent that some of the names may be known to the public already, it assists in public understanding of what is happening and it assists public debate to know those names. That is pointed out particularly by the House of Lords in In re BBC [2010] 2 AC 145. That case has some specific discussions about this question of names. In paragraph 56, Lord Brown quotes from Lord Steyn about the importance of publicity and then says, this is between F and G on that page:

“it is important to bear in mind that from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

Then, at paragraph 65, his Lordship says:

What weight, then, should be attached to the BBC’s article 10 right to free expression? Whilst Lord Pannick naturally recognises the high value ordinarily attaching to the freedom of the media to report on court proceedings . . . he nevertheless suggests that very little weight should be given to that right in this case. Why, he asks rhetorically –

and this is the question I was just asked –

cannot the BBC broadcast their programme simply referring to D as D without actually identifying him?
The short answer to that submission is in my opinion to be found in para 34 of Lord Steyn’s speech . . . such a programme would indeed be “very much disembodied” and have a substantially lesser impact upon it audience.

We submit that those are significant factors which are entitled to weight. Lord Hope at page 165 puts it even more clearly. In paragraph 26 on that page he says:

Will the revealing of D’s identity in connection with the proposed programme pursue a legitimate aim? I would answer that question in the affirmative. In Jersild v Denmark, at para 31, it was recognised that there is a duty to impart information and ideas of public interest which the public has a right to receive. The programme that the BBC wish to broadcast has been inspired by the removal of the double jeopardy rule. What this means in practice for our system of criminal justice is a matter of legitimate public interest.

As are questions of recidivism and the effect of rehabilitation and so on –

Among the issues which can be so described are the kinds of offences to which Part 10 of the 2003 Act applies, and the circumstances . . . These issues could, of course, be discussed in the abstract by reference to hypothetical facts and circumstances. But the arguments that the programme wishes to present –

and this applies precisely to my client –

will lose much of their force unless they can be directed to the facts and circumstances of actual cases.

GUMMOW J: What do you mean by “argument”? What is the force of the word “argument”?

MR BENNETT: Well, your Honour, the publications here, certainly the ones ‑ ‑ ‑

GUMMOW J: Some cogent exposition of a point of view, reasoned steps or an emotive outburst. Is that an argument?

MR BENNETT: Well, your Honour, an emotive outburst can be argument. Here an argument is put with some emotion.

GUMMOW J: That is what I am asking.

MR BENNETT: But that is a feature of political argument all the time; it was referred to in Coleman v Power where the Court said that abuse of other people was part of political argument in many cases.

FRENCH CJ: Mr Bennett, it is important, I think, that we take as our starting point just what the statute actually does and what it authorises and just in relation to the suppression of identity of a person, one looks at 42(1)(c) which authorises an 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 ‑

Now, I suppose there might be more than one way of construing that. One might have thought that a construction that is open is that that authorises a limitation, or a restriction on publication of the fact that offender, Mr X, was the subject of an application for an extended supervision order and that such an order was made in respect of Mr X, rather than a prohibition on saying that Mr X was convicted at some time in the past of having committed a sex offence. Against that, and this is not necessarily running against what your are saying, but against that, one looks at the form of orders that have been made in this particular case, especially, perhaps by way of example, the order which appears at page 124 of the Court’s book, and that says simply:

Except in the manner and to the extent specified in –

certain paragraphs relating to the position of the Chief Commissioner and the Secretary and so forth –

no information that might enable the respondent to be identified is to be published.

In other words, the order does not seem to limit it to the context of the ESO application or hearing or evidence. What is the construction for which you contend of the scope of the power in section 42(1)(c)?

MR BENNETT: Your Honour, we would say two things. First, it would not be so limited. One would be in breach of that if one identified him as a person who had been convicted and described the circumstances of his conviction. But even if that is wrong, why is it not necessary, if one is to have intelligent public discussion of extended supervision orders, of whether they should be made, of whether they were effective and so on, to be able to publish the fact that the person named is a person in relation to whom an extended supervision order has been made?

FRENCH CJ: There is a policy debate there. We are looking at the question of constitutional validity and whether this power confers upon the court something that is incompatible with its status as a repository of federal jurisdiction.

MR BENNETT: Yes.

FRENCH CJ: The question really does require an answer – the question that requires an answer is, what is the correct or appropriate construction? Of course, one construes, so far as one can, in a way that is consistent with constitutional validity.

MR BENNETT: Yes, but either way, your Honour, whether it is referring to the main trial or merely to the application for extended supervision order what is happening is the court is being asked to make an order suppressing the name of the person involved in some proceedings. That is being done, according to the Victorian Supreme Court, in the interests of the person’s privacy.

HAYNE J: Just a point of detail, Mr Bennett. The order of Judge Hannan at which we have just been looking was an interlocutory order, I think, not as is described in the cause book as itself an extended supervision order. It is an interlocutory order pending hearing and determination of the application for extended supervision order, I think.

MR BENNETT: Yes. Your Honours, the order - paragraph 5 is, “Until the issue of any further order”.

HAYNE J: Yes, it is an interlocutory order. It may be very large. It may be too large, but that is beside the immediate point, I think, of validity but it is important to recognise that that is an interlocutory order. By contrast, the order of Judge Millane which we see at 119 and following is a form of final order.

MR BENNETT: Yes. The following one, the order of Judge Rizkalla at page 128 it – the same – 4.1 seems to be equally broad. Again, it is simply until further order and in the absence of further relevant order that would be operative and that is what we are charged with.

HAYNE J: I think we are missing a page in the application books, Mr Bennett. Can your solicitors, over the adjournment, look to whether there should not be a further page between 127 and 128. We go paragraph 3.1 over to paragraph 4.3, page 3, but that can be dealt with over lunch.

MR BENNETT: I think, your Honour, the answer to that is that the page facing page – yes. Does your Honour have a page facing page 128 with 3.2 at the top?

HAYNE J: No. Let us not delay on the practicalities, but can someone look at it over lunchtime.

MR BENNETT: I am sorry, your Honour. Yes, I will have that - I am told that page 127A was part of an amended court book which was filed. It is important for me to establish that the principle of open justice and open courts was well established at the time of the Constitution.

If I could start by reminding your Honours of the well‑known case of Daubney v Cooper (1829) 10 B & C 237, 109 ER 438. I have it. That was a trespass case where a member of the public was removed from the court by a justice and at page 440 of the reprint, it is on page 240 of the original report, this passage appears six lines from the top of page 440:

the ground upon which our present opinion is formed is, that the magistrate was proceeding upon a summary conviction, and, therefore, exercising a judicial authority. He was, as it were, a court of justice for that purpose; and we are all of opinion, that it is one of the essential qualities of a Court of Justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, – provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, – have a right to be present for the purpose of hearing what is going on.

When that is applied to a modern context, it must encompass the right of the press to report what goes on in a court. It is of little value having the court open to the public and then saying, but no one can report what goes on there. It is of the essence of the publicity attached to courts that the press should be free to do that and any restriction on that requires justification and, as we will be submitting, the only justifications are the necessity in the interests of justice. There is an extension of that where the subject matter of the proceedings might be destroyed by publicity. For example, a case brought for the purpose of preserving the confidentiality of commercial or confidential information or a case against a blackmailer seeking an injunction against the blackmailer disclosing the material.

In such cases, of course, it would destroy the subject matter of the litigation, so that is clearly necessary in the interests of justice. I have already referred to the victim who may not come forward if the name of the victim is not suppressed in some way. But those cases have no application here where we are only talking about the right of a criminal to privacy, which, as I say, is the lightest possible consideration when weighed against the important considerations arising in this case. The position in England was affirmed in Scott v Scott (1913) AC 417 where the House of Lords made it quite clear that courts could not be closed to the public and, indeed, overruled one case which had suggested the contrary in the divorce context where there had been allegations of sodomy.

In the speech of Viscount Haldane, the Lord Chancellor, at page 435, halfway down the page he refers to a case of A v A in which a hearing was held in camera in circumstances I have just described. Viscount Haldane says that he thinks that Sir James Hannen laid down the rule much too widely:

Whatever may have been the power of the Ecclesiastical Courts, the power of an ordinary Court of justice to hear in private cannot result merely on the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge.

We would submit that public interest substantially does that, particularly when, as the Victorian Supreme Court suggests, it includes a right of privacy.

GUMMOW J: Does Scott v Scott deal with cases of trade secrets, for example?

MR BENNETT: Yes, it does. At page 445 in the judgment of Earl Loreburn, his Lordship says at point 3:

I cannot think that the High Court has an unqualified power in its discretion to hear civil proceedings with closed doors. The inveterate rule is that justice shall be administered in open court.

He then refers to “lunatics or wards of Court”, which is distinct and subject.

KIEFEL J: Perhaps there is a reference also in Viscount Haldane’s reasons at page 437, towards the foot of the page:

The other case referred to, that of litigation as to a secret process –

I think might partly answer Justice Gummow’s inquiry.

MR BENNETT: Yes. Earl Loreburn comes to that in the next paragraph where he says:

It has been held that when the subject-matter of the action would be destroyed by a hearing in open Court, as in a case of some secret process of manufacture, the doors may be closed. I think this may be justified upon wider ground. Farwell L.J. aptly cites Lord Eldon as saying, in a case of quite a different kind, that he dispensed with the presence of some of the parties “in order to do all that can be done for the purposes of justice rather than hold that no justice shall subsist among persons who may have entered into these contracts.” An aggrieved person, entitled to protection against one man who had stolen his secret, would not ask for it on the terms that the secret was to be communicated to all the world. There would be in effect a denial of justice.
Again, the Court may be closed or cleared if such a precaution is necessary for the administration of justice.

He gives tumult as an example and refers to that in more detail in the next paragraph, whether people who are behaving badly can be removed from a courtroom to enable justice to be administered.

GUMMOW J: The contents of these reports we have been talking about that Justice Bell referred to in section 42(1)(b) – would the content of those reports be confidential information to any degree?

MR BENNETT: Your Honour, they are prepared for the purpose of that application, for the purpose of an application in court.

GUMMOW J: That is right.

MR BENNETT: So the suggestion that reports would not be prepared if they were going to be published can hardly be made. There is certainly no evidence suggesting that that would be so.

BELL J: As a practical matter, these reports are likely to be prepared by psychiatrists or psychologists and to contain material, one would expect, of a highly personal nature involving disclosures by the offender, assuming he or she co‑operates, concerning very intimate matters. Under section 7A of the Act provision is made for the secretary to direct an offender to attend a specified medical expert for the purpose of a personal examination. If one looks at the nature of these proceedings, they are directed to enhancing the protection of the community by requiring offenders who have completed the lawful sentence imposed on them for the commission of an offence to undergo a period of monitoring and quite severe restrictions on their liberty.

The court, in making a determination about whether or not it is appropriate to make such an order, is informed by information of a highly personal nature, prepared by a medical practitioner, concerning that individual. That individual is under a degree of compulsion to co‑operate in the supply of that information. On one view, it might be thought odd that the law would protect trade processes but not protect the confidentiality of information of that character in circumstances where it is placed before the court having regard to the particular provisions of this rather unusual legislation.

MR BENNETT: Well, your Honour, first it is information prepared for the purpose of being placed before the court and inherently that, we submit, is a public process and those who prepare the information ought to prepare it with that in mind. Secondly, it is a matter of importance to the public to know why people are being dealt with in a particular way when they have offended, why particular restrictions were imposed on them, whether those restrictions went too far or did not go far enough. Those are matters of legitimate public debate and matters which fall squarely within the principle that the courts must be open to the public so that the public can see what is being done and its desirability or otherwise.

BELL J: If one considers that underlying this scheme is a notion that the monitoring of persons who have completed the sentence imposed on them for their offence will promote their rehabilitation, it might be thought understandable that on occasions the rehabilitation of a person would not be promoted by the publication of revelations concerning their intimate thoughts and feelings made in the context of a discussion between them and a medical professional designed to prepare a full and complete report for a court which is to make an assessment of whether there exists the high probability of danger to which this Act directs attention.

MR BENNETT: Your Honour, we submit a number of things about that. First, that does not apply to the name which is what we are concerned with here. This case, of course, is concerned with names, not with details of the courts. Secondly, there is no evidence or suggestion that it promotes rehabilitation to suppress the names and the reports and, indeed, it might be thought, at least in relation to the suppression of names, that it was counterproductive. This a priori reasoning because the informant has not put out evidence of this and we have not.

One would have thought, for example, that if the risk of re‑offending is increased by people not being able to warn their children that a notorious paedophile is in the neighbourhood, that would promote the risk of re‑offending and recidivism rather than the virtues of rehabilitation. This Court has made that sort of analysis in the constitutional context in cases like Castlemaine Tooheys and Betfair where something is said to be appropriate and adapted and the Court makes an a priori judgment that it is not in the circumstances.

BELL J: What we are looking at here is the challenge to validity going to the question of the capacity of the Parliament of Victoria to confer on a court a judicial discretion by reference to criterion of the public interest.

MR BENNETT: Which we submit it cannot do. It can only do it by reference to the criteria of necessity in the administration of justice which includes destruction of the subject matter of the litigation and perhaps matters of life and death or national security. National security, of course, can be said in an indirect way to be a part of the administration of justice because the courts are part of the system of the government of the nation which national security protects.

GUMMOW J: In Scott v Scott there is reference to wardship and lunacy, is there not?

MR BENNETT: Yes, there is. Those are cases involving the administration of justice and they may be exceptions that stand in their own right, but again there are questions as to what matters could be brought before the court if they were dealt with publicly and there may be questions of destroying the subject matter of the litigation in some of them, namely, those cases are concerned with the welfare of the ward or the insane person and that itself might be destroyed. So there are other ways in which those cases might be justified.

HAYNE J: Well, it is necessary to take account, is it not, of what Viscount Haldane says at the foot of 437 (1913) AC 417. His Lordship proceeds from the premise that the paramount object is to do justice and that publicity is only the means to an end and that publicity must on occasion yield. You begin from a premise articulated in precisely opposite form, do you not, namely, your premise is that publicity is the end in itself and it may yield occasionally? You invert the reasoning in Scott v Scott, do you not?

MR BENNETT: Your Honour, I submit that is not the true nature of the reasoning in Scott v Scott. He says the broad principle is on page 437, point 5:

that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions . . . the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice –

and there are cases where you cannot secure justice if it is done that way. He makes that clear at the bottom of the page, four lines from the bottom, where he says in relation to the secret process case:

There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity . . . must accordingly ‑ ‑ ‑

HAYNE J: You omit the critical parenthetical, Mr Bennett, which omitting rather modifies the sense.

MR BENNETT: I thought I read it all, your Honour.

HAYNE J: “After all only the means to an end” is the words you omitted, but we can all read Scott v Scott. We have all read it more than once.

MR BENNETT: Yes, that is so. I simply remind your Honours that it referred to a number of cases before our Constitution, and the ones we direct your Honours’ attention to, although I will not take your Honours to them, although they are on the list, are Andrew v Raeburn (1874) LR 9 Ch App 522, and C v C (1869) LR 1 P & D 640. The case that went the other way, A v A, is an anomalous case which was overruled in the passage I first took your Honours to.

KIEFEL J: Mr Bennett, just before you proceed, as I understand it, you do not take issue with the courts undertaking the function of making extended supervision orders?

MR BENNETT: No, your Honour. First of all, there is no reason why a State court cannot have administrative powers conferred on it and secondly, it is probably ancillary to the sentencing processing in any event.

KIEFEL J: Yes, perhaps the latter, and in that circumstance, would the Court’s function then include considerations of the welfare and wellbeing of the person the subject of the order?

MR BENNETT: The fact that those matters may be relevant considerations is insufficient to justify departure from the publicity. There are many cases - probably one might even venture to say, without too much exaggeration – most cases before the courts in which one or both parties would prefer to have them dealt with in private. But that, and the welfare of a party might suggest that, but that is not a reason for departing from the rule.

KIEFEL J: But putting it in the way you do that that is not sufficient to overcome publicity takes us into the area of a proportionality argument.

MR BENNETT: It does in one sense, in the sense that any principle implied in the Constitution is going to have some exceptions and one has to work out the scope of them and what is the basis on which exceptions will be permitted. In Kable, of course, one could have argued that it was appropriate and adapted for the saving of the life of the person he was alleged to have threatened while in gaol to make the order, but that was not thought sufficient to save the breach of basic principles of judicial process in that case. So when one has implications from Chapter III in one sense, it may be necessary to look at questions analogous to the appropriate and adapted tests which apply in relation to the implied freedom of political communication.

Whether one calls that proportionality, the recognition of exceptions, or appropriate and adapted, is perhaps a jurisprudential question. But whichever way one looks at it, we submit that this particular implication in the Constitution is one which is not easily overcome and the exceptions need to be limited and should be limited in the way I have suggested.

HAYNE J: Just apropos of the question of the significance of rehabilitation, account would have to be taken, I think, of section 15(2) of the Act which says:

The purposes of the conditions are –

twofold –

(a)to ensure that the community is adequately protected . . .

(b)to promote rehabilitation, and the care and treatment, of the offender.

MR BENNETT: Yes, to promote care and treatment of the offender is hardly something which can override this principle and to promote rehabilitation, similarly is, we would submit, insufficient. Protection of the community for the reasons I have given earlier and will be referring to again it is readily ascertainable an a priori reasoning that has the opposite effect or has a tendency to the opposite effect.

GUMMOW J: Is not what was said by Justice Gibbs in Russell v Russell 134 CLR 495 at 520, beginning at the paragraph, “It is the ordinary rule”, is that not against you? This is in a constitutional context too.

MR BENNETT: Yes, I was going to come to that next, your Honour.

GUMMOW J: Yes:

If the Act had empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of the Parliament. In requiring them to sit in closed court in all cases . . . the Parliament has attempted to obliterate one of their most important attributes.

MR BENNETT: Yes, but that is without definition of what the cases are. There are a number of passages ‑ ‑ ‑

GUMMOW J: But section 42 is a provision of the sort that Chief Justice Gibbs was talking about, is it not?

MR BENNETT: I am sorry, your Honour.

GUMMOW J: If section 42 of the Act we are dealing with says if satisfied it is in the public interest, the court may do something. It is the absence of that sort of provision in the Family Law Act which brought it to grief.

MR BENNETT: Yes, because it was a much stronger case than this one.

FRENCH CJ: Earlier, in the same passage, his Honour referred to:

established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament.

You would not cavil with that proposition?

MR BENNETT: Yes, but that is not suggesting that one can have a category as broad as this, particularly when it has been held to include privacy considerations. That is all the Supreme Court of Victoria could detect as the relevant basis. In the judgment of Justice Gibbs, as he then was, at page 520 he refers to the fact that:

It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.

That can apply equally to orders the court makes in the form of supervision orders –

Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.

That is where we get the ‑ ‑ ‑

BELL J: At issue there was the legislation directing State courts as to the procedure to be adopted with respect to matrimonial causes. If one goes to Chief Justice Barwick at 506 to 507 of the report, his Honour notes that:

it is for the legislature of the State alone to determine that policy –

and he is there referring to issues, including the closing of courts, and presumably non‑publication is embraced within that. So he says it is for the State alone to determine that policy and to prescribe the occasion when the jurisdiction may be exercised in a closed court.

MR BENNETT: That was before Kable, of course, your Honour.

BELL J: Yes.

MR BENNETT: At a time when it would have been thought that the Constitution would say very little about State courts. That passage is, we would submit, therefore no longer applicable. He goes on at page 507 to say:

Section 97(1) -

which is, of course, a broader section than this one –

purports to take from the State court any discretion to exclude the public in certain particular circumstances, a discretion which when it is available, in my opinion, inheres in the nature and organization and operation of the court. The exercise of such a discretion does not touch upon the nature or extent of the jurisdiction to hear and determine. The section of the Act purports to deny the court of the State any such discretion –

et cetera. He then holds that to be invalid. We would submit that – Justice Stephen in that case puts it in a slightly different way at page 532, point 9 where he says that:

To require that a Supreme Court, possessing all the attributes of an English court of justice, should sit as of course in closed court is, I think, in the words of Lord Shaw, to turn that Court into a different kind of tribunal and involves that very intrusion into its constitution and organization which s.77(iii) does not authorize.

BELL J: I think that since Kable it has tended to be recognized, including in the decision of the New South Wales Court of Appeal in the John Fairfax Case that while there may be limitations on the extent to which courts may create new categories in terms of closing courts that is not suggested to apply to Parliament.

MR BENNETT: Your Honour, in Kable, of course, it did. In Kable the Act was invalid because it gave a power to a court to do something which would have made it into something other than a court.

BELL J: That may be accepted, Mr Bennett, but we are looking at the question of the competence of a Parliament to create new exceptions to the open justice rule. There are a number of exceptions. They are not said to operate such as to deprive a court of its essential characteristics of being a court.

MR BENNETT: No, your Honour. The fact that a principle has exceptions does not necessarily destroy the principle. Indeed, the old proverb suggests the opposite, that the exception proves the rule. The analogy to Kable comes from this phrase used by Justice Stephen of turning the “Court into a very different kind of tribunal”. That is what Parliament cannot do by conferring a power on a court. That is what was done and invalid in Kable and that, we submit, is what is done here.

BELL J: But again, looking at the practical operation of this legislation, one assumes that there is some utility in a convicted sex offender speaking frankly to a medical practitioner concerning intimate matters of their personality, touching on their sexual conduct. One can appreciate that the publication of matters of that character in a medical report might be harmful to the rehabilitation of the individual. All this legislation does is to confer on a court a judicial discretion to determine in a given case a particular report ought not to be made public for a reason of that character.

MR BENNETT: Well, your Honour, it is disclosed knowing that it is going to be published to a court and discussed in a courtroom in which the public may sit. It is disclosed knowing that. One cannot conclude a priori that there would be many cases where it would not be disclosed frankly if the proceedings of the court were able to be reported, but would be disclosed frankly if the proceedings of the court were confined to those who were present. That is a piece of a priori reasoning, with respect, which we submit cannot be made and cannot be assumed, particularly when pitted against the other interests of protection of the public, right of the public to know and ability of the public to criticise and to be aware in what sorts of cases supervision orders are made and what they involve. That is clearly a matter of legitimate public debate and a matter the public ought to be informed of. The consideration being put against that is, in our respectful submission, not in the category of the exceptions which the constitutional implication should permit.

FRENCH CJ: Within the framework of your Kable argument you are really focusing, are you not, upon the breadth of the discretion conferred upon the court under section 42? My understanding is that you do not say that a court could not make a suppression order validly, be authorised to make a suppression order in relation to such things as the name of an offender, but that the scope of the power conferred upon it to do so in this Act is impermissibly wide.

MR BENNETT: Yes, your Honour, in a context where it is difficult to imagine any case where suppression of the name of the offender would be necessary in the interests of justice as opposed to protect his privacy or something of that nature.

FRENCH CJ: But if instead of the words “in the public interest” the words “in the interests of justice” had been used ‑ ‑ ‑

MR BENNETT: We would not be here.

FRENCH CJ: ‑ ‑ ‑ you would not be complaining.

MR BENNETT: We would not, your Honour.

FRENCH CJ: You might then argue about the scope of the orders.

MR BENNETT: There may be a question about whether necessary for the administration of justice or desirable – there may be some argument about the words, but that does not arise in this case.

KIEFEL J: Why does not the question of the public interest take account of the interests of justice in the context of the purposes of an Act like this?

MR BENNETT: It would, your Honour, but that does not go far enough. You could have a case where it was thought to be in the public interest but not necessary for the administration of justice and in such a case, we submit, the court would not have constitutional power to make the order and the power could not be conferred on it. That would make the court into something different.

FRENCH CJ: Does the public interest to which section 42 refers preclude the court from taking into account, or excuse the court from taking into account, the importance of the open court principle to which you have been adverting?

MR BENNETT: It does not preclude it, your Honour, but it does not go far enough by making it the sole test.

KIEFEL J: It is not precluded. The court would be obliged to take it into account, would it not?

MR BENNETT: It would be obliged to take it into account, yes, your Honour.

KIEFEL J: It would be a very strong factor.

MR BENNETT: But, again, one then has a different problem, which is the practical inability of the press to do anything about it by way of challenge. It is said against us that we would have the right to be present at the hearing and to seek a right to be heard on the making of an order, but we have to know that the hearing is happening and we have to know what is being sought for that right to be of any value and there is no merits review of the order on any view of it.

KIEFEL J: That is not to say that in the past the media have not been able to participate in these matters, as I understand it.

MR BENNETT: There may have been occasions where people have heard of them. The other problem, of course, is that there is a time limit, so when we made an application in relation to one these orders, we were told we were out of time and that, of course, is imposing a time limit on someone who is not a party, who may not know about it, is, in our respectful submission, largely to render the right nugatory.

GUMMOW J: What is the time limitation provision, Mr Bennett?

MR BENNETT: I am told it is 60 days, your Honour, but I will have the section turned up. The case in which it was applied against us is the case of Hinch v County Court of Victoria in [2009] VSC 548. It is rule 56.02 of the Rules of the Supreme Court which imposes a time limit of 60 days. It is a rule of general application.

GUMMOW J: That goes into the County Court too, does it?

MR BENNETT: Well, that is in relation to an appeal which would not be to the County Court.

GUMMOW J: I see.

MR BENNETT: Yes. It would be in the Supreme Court, and that was the basis, as your Honours see on which ‑ ‑ ‑

HAYNE J: Rule 56 is not the judicial review rule, Mr Bennett?

MR BENNETT: No, it is not, your Honour.

HAYNE J: Is it not?

MR BENNETT: No.

HAYNE J: My memory of it is it was, Mr Bennett, but my time on the Rules Committee was 15 years ago.

MR BENNETT: Yes, I am wrong on that, your Honour. I was just about to correct myself. I am wrong on that.

HAYNE J: Yes.

MR BENNETT: It is the case that was brought ‑ ‑ ‑

HAYNE J: So let me just understand what you are putting, Mr Bennett. The time limit of which you complain, or to which you refer, is the time limit that is applicable to bringing proceedings by way of judicial review, is it not?

MR BENNETT: Yes, your Honour, in a context where the person who is barred and who has the interest in setting aside the order is not by any procedure a party or notified of the making of the order.

HAYNE J: Yes. It is a point which I think engages considerations of the kind examined by Justice McHugh in a case I think called Marx v The Commonwealth where his Honour refers, I think, to the need for there to be finality to certain public decisions.

MR BENNETT: Yes. Your Honour, there are also cases, such as S157 and Bodruddaza and those cases, of course, concerned a class of persons who would clearly have difficulty in complying with a time limit for various reasons and in that sense they are analogous here. The person who would wish to bring the challenge, the press organisation or person, is a person who might have difficulty in finding out about the date on which the 60 days commenced.

GUMMOW J: But there are special circumstances, are there not? Does not the rule itself have built into it the special circumstances flexibility?

MR BENNETT: It does have provisions for extension, yes, your Honour.

KIEFEL J: That was denied in the case of this particular applicant.

MR BENNETT: Yes, it was, your Honour.

KIEFEL J: On the basis that no adequate explanation for the delay had been given.

MR BENNETT: Yes, that is so, your Honour.

KIEFEL J: That appears from the judgment, paragraph 76.

MR BENNETT: Yes, it was an evidentiary basis ultimately, that is so. The point remains that, as a practical matter, it is very hard when the journalist or media organisation wishes to publish something to get before the court and to get the order challenged and to ascertain the necessary details to do that and, of course, it is limited to judicial review in any event.

GUMMOW J: This word “published”, Mr Bennett, is that defined anywhere?

MR BENNETT: No, your Honour.

GUMMOW J: Section 43 may suggest that it means divulge or communicate.

MR BENNETT: Yes. Your Honour, there were various possible meanings which have been suggested.

GUMMOW J: Or it may simply mean published in the defamation law sense.

MR BENNETT: One is that at the other extreme it is suggested that it may involve publication to the public and not if one simply tells one person, but the fact that there are exceptions ‑ ‑ ‑

GUMMOW J: Wait a minute. Media organisations tend to overlook the fact that they are sidelined to some extent by electronic media these days.

MR BENNETT: Yes.

GUMMOW J: Does this include communication by electronic processes we know about?

MR BENNETT: Your Honour, it almost certainly would, one would think. The fact that some of the exceptions ‑ ‑ ‑

GUMMOW J: Those people not being persons charged with the ordinary responsibility of media proprietors, of responsible journalism.

MR BENNETT: Your Honour, the fact that the exceptions involve publication to single office holders but they require an exception before one can publish to one person rather suggests a broad meaning of the word “publish”.

GUMMOW J: It also suggests there may be wider scope for mischief to which the Parliament was responding because it is not dealing simply with established forms of media communication.

MR BENNETT: Well, your Honour, that is not a reason for imposing greater restrictions. The fact that the media today may be able more effectively to communicate instantaneously with a larger number of people is not a reason for restricting the ability of the media or others to publish.

GUMMOW J: There may be questions of severance.

MR BENNETT: Well, your Honour, there are questions of severance if one were to read the section down to say, unless it is – one can only make an order if it necessary for the purposes of the administration of justice or for matters of life and death or for protection of the national security. If it were limited in some way like that and read down in that way, we would not oppose that, but here there is something much wider. There is a discussion in – and I will not take your Honours to it, it is referred to in paragraph 29 of the informant’s submissions – there is a discussion in KF v Parramatta Children’s Court [2008] NSWSC 1131 by Justice Hidden of the meaning of “published” in a context of this sort, and the submission my learned friends make is that:

it should be construed to mean ‘publication of material to the public at large or a section of it usually, but not necessarily, by the news media . . . not . . . “a communication between individuals, for one reason or another, with no public aspect –

We say two things about that. First, the vice is still there even if so limited and, secondly, it seems to be inconsistent with the express permission to communicate to various government functionaries. I should remind your Honours about what has been said in two other English cases and then one United States case in relation to this question of open justice and exceptions to it. The other English case is Re Guardian News and Media Limited [2010] UKSC 1. In that case Lord Rodger begins with these words ‑ ‑ ‑

GUMMOW J: What was the issue in this case?

MR BENNETT: The issue there, your Honour, was the suppression of the names of people who were charged with terrorism offences and it involved a balancing of two European provisions, one dealing with freedom of the press and one dealing with the right to privacy, but in the context of that discussion there was some discussion of ‑ ‑ ‑

FRENCH CJ: Were they charged with offences or the subject of some sort of directions?

MR BENNETT: I am sorry, your Honour?

FRENCH CJ: Were they charged with offences or were they the subject of some sort of administrative direction?

MR BENNETT: Yes, there were control orders, I think. The very first words of Lord Rodger’s speech, delivering the judgment of the court were:

“Your first term docket reads like alphabet soup.” With these provocative words counsel for a number of newspapers and magazines highlighted the issue which confronts the court in this application.

I recall Justice Gaudron when she was on this Bench making similar complaints about the use of letters in the Migration Act, although, of course, that could probably be justified on one of the other bases for obvious reasons. His Lordship goes on –

In all the cases down for hearing in the first month of the Supreme Court’s existence at least one of the parties was referred to by an initial or initials. Thanks to the relevant Practice Note, the same goes for the very last case heard by the House of Lords . . . and the very first judgment handed down by the Supreme Court . . . Indeed, so deeply ingrained has the habit of anonymisation become that the judgment of the Court of Appeal in Am (Somalia) v Entry Clearance Officer [2009] UKHRR 1073 was published under that name, and came on appeal to the Supreme Court under the same name, even though Maurice Kay LJ had begun his judgment by saying that anonymity was unnecessary. At the hearing of the appeal that assessment proved to be correct.

Then he refers to the widespread phenomenon of anonymity orders. In paragraph 68 he says:

Certainly, the identities of the claimants cannot affect the answers that this court gives to the legal questions in the substantive appeals. So those identities may not matter particularly to the judges. But the legitimate interest of the public is wider than the interest of judges qua judges or of lawyers qua lawyers. Irrespective of the outcome, the public has a legitimate interest in not being kept ‑ ‑ ‑

GUMMOW J: Wait a minute. Just stop for a minute. Where does this word “legitimate” come from? What is its content? What makes it legitimate? Is it not circular? Is it a reference to any more than the relevant article that is being balanced?

MR BENNETT: Your Honour, we would submit in the context it is also a recognition of the principle of open justice.

GUMMOW J: What is the open justice involved in these control orders in the United Kingdom?

MR BENNETT: Your Honour, that these orders are made and the public is not entitled to know the name. They are made under letters of the alphabet.

GUMMOW J: Made by whom?

MR BENNETT: I do not know who devises the specific letters. Presumably that is done by the Executive at some level. The other English case, before I take your Honours to the leading United States constitutional case on the subject, where they find the very constitutional implication I am arguing for ‑ ‑ ‑

GUMMOW J: They are made by administrators in the United Kingdom.

MR BENNETT: Yes, they are, but in relation to it, because that is involving proceedings before courts. The other case I should remind your Honours of is R v Evesham Justices; Ex parte McDonagh [1988] QB 553. That is a very extreme case which one would have thought could have been resolved in a different way, but it nevertheless indicates very clearly the strength of the principle. The facts appear at the beginning of the judgment of Lord Justice Watkins at page 555. There had been a proceeding before Magistrates Court for a minor traffic offence. The defendant was a member of Parliament. He sought not to have his address made public. Since his divorce from his wife he had been subjected to harassment. He had obtained a High Court injunction restraining her and she had previously, when she had known where he lived, damaged his motor vehicle and thrown things through the windows. He had moved to avoid that and sought, I would have thought not surprisingly, to keep his address confidential.

Now, of course, the thing that strikes any Australian lawyer about this case is, why did they not just use his business address, which was the House of Commons? It is a matter of everyday occurrence in courts in Australia that professional people give their office addresses rather than their home addresses. It is sometimes said that theoretically one should give one’s home address and certainly in the 1960s, from my recollection, judges used to insist on it. Today it is a rule which, if it still exists, is observed in the breach rather than the observance. But apparently in England the rule that you must give your home address is treated with enormous seriousness and the question here was that what the magistrate did was allow him to write his address on a sheet of paper and hand it up so that the address was not published and that, the court held, is what could not be done. At page 561, at letter G, Lord Justice Watkins says:

It is not, therefore, right to say that everything which justices receive as evidence has publicly to be revealed. This because the proper administration of justice commands a measure of confidentiality in respect of certain evidence which –

and he does use the words “public interest” –

should not be published.

But he then goes on and makes that clear by saying:

I am bound to say that I am impressed with the argument that the action taken by the justices in the present case had nothing to do with the administration of justice. It seems to me that the concern shown by the justices for not giving publicity to Mr Hocking’s home address was solely motivated by their sympathy for his well‑being if his former wife should learn of his home address and harass him yet again.

Now, one would have thought if one was looking at public interest that would be a very powerful consideration, but it is regarded as not being a sufficient consideration because it is nothing to do with the administration of justice. It is a case which puts the importance of open justice in relation to what one would have thought was a comparatively trivial piece of evidence in which the public did not have much interest ahead of what one would have thought prima facie was a very serious interest. In that sense, the case is a very powerful one for the principle, whether or not one agrees with a specific application.

I mentioned that there was a United States decision. That is a decision of the Supreme Court in Richmond Newspapers Inc v Virginia (1980) 448 US 555. This case involved implications from various provisions of the Bill of Rights, but two things are of interest. First, that the court goes into some detail as to the history and status of the rules concerning open courts and, secondly, that the result was found by implication, not from anything else. That appears from the top of page 575 where Chief Justice Burger says:

Despite the history of criminal trials being presumptively open since long before the Constitution, the State presses its contention that neither the Constitution nor the Bill of Rights contains any provision which by its terms guarantees to the public the right to attend criminal trials. Standing alone, this is correct –

So there, as here, there is no express provision –

but there remains the question whether, absent an explicit provision, the Constitution affords protection –

Then further down on that page at point 7:

The Bill of Rights was enacted –

we substitute “the Constitution was enacted” –

against the backdrop of the long history of trials being presumptively open. Public access to trials was then –

and this is over 100 years before our Constitution –

regarded as an important aspect of the process itself; the conduct of trials “before as many of the people as chuse to attend” was regarded as one of “the inestimable advantages of a free English constitution of government.” –

et cetera. Now, the historical part, I will not take your Honours through, but your Honours may find it useful as a reference, commences at page 564 and they show that:

The origins of the proceeding . . . can be traced back beyond reliable historical records. We need not here review all details of its development, but a summary of that history is instructive. What is significant for present purposes is that throughout its evolution, the trial has been open to all who cared to observe.

Then it goes back to the days before the Norman Conquest ‑ ‑ ‑

GUMMOW J: Perhaps you had better look at Justice Stewart at page 600, Mr Bennett, the paragraph beginning “But this does not mean”.

MR BENNETT: Yes. The exceptions given there are very much within the administration of justice exception. He says:

the First Amendment right . . . is [not] absolute. Just as a legislature may impose reasonable time, place, and manner restrictions upon the exercise of First Amendment freedoms, so may a trial judge impose reasonable limitations upon the restricted occupation of a courtroom by representatives of the press and members of the public . . . Much more than a city street, a trial courtroom must be a quiet and orderly place . . . Moreover, every courtroom has a finite physical capacity, and there may be occasions when not all who wish to attend a trial may do so. And while there exist many alternative ways to satisfy the constitutional demands of a fair trial, those demands may also sometimes justify limitations upon the unrestricted presence of spectators –

et cetera. They go on to say that:

in the present case the trial judge appears to have given no recognition to the right of representatives of the press and members of the public to be present at the Virginia murder trial over which he was presiding, the judgment under review must [therefore] be reversed.

I do commend to your Honours, without going through it, the English historical material and the early American historical material which is gone through on pages 564 and following. The phrase used at page 569 at point 2:

As we have shown, and as was shown in both the Court’s opinion and the dissent in Gannett . . . the historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo‑American trial.

Then there is a quotation lower down of the familiar quotation from Bentham. So that, we submit, is a useful persuasive precedent, in a different system, with a different Constitution, of course. But the same considerations, which we rely on, are used to find something which it does not appear in the constitutional Bill of Rights itself.

There are cases in Victoria and New South Wales which emphasise the importance of the open courts. I will not take your Honours to those cases; I will just give your Honours the references. The two in New South Wales are John Fairfax & Sons Ltd v Police Tribunal (New South Wales) (1986) 5 NSWLR 465 at 476 to 477 and 481C and Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 and in Victoria, R v White (2007) 17 VR 308.

At page 312 there is a statement – and this is in the context of suppression orders – where in referring to suppression orders under the general provisions of the Supreme Court Act, which involve necessity, the phrase was – the matter we rely on is paragraph 2 on page 312 in paragraph 21 where what is said is:

The test of necessity under ss 18 and 19 of the Supreme Court Act represents a bar which is very high and will be reached only in exceptional circumstances.

That is in the context of saying in paragraph 1:

It is of fundamental importance that courts operate openly -

et cetera.

Under s 18 of the Supreme Court Act 1986 publication of the whole or part of a proceeding can be prohibited, but only where it is necessary to do so by reason of the matters enumerated in s 19 of the Supreme Court Act.

They are not set out there unfortunately, but the point is that the test is put as being a very high test. Finally, the other case is Re Applications by the Chief Commissioner of Police (2004) 9 VR 275. In paragraph 29, this is a decision of this Court -– I am sorry, I think I have the wrong paragraph number.

HAYNE J: You are referring to the Court of Appeal decision. The case came here.

MR BENNETT: Yes. I am looking at the wrong case, I am sorry. In paragraph 25, the statement is made that:

The principle of open justice is deeply entrenched in our law.

A string of cases are cited.

It rests upon a legitimate concern that, if the operations of the courts are not on public view as far as possible, the administration of justice may be corrupted. A court is “open” when, at the least, members of the public have a right of admission. From this it may be thought ordinarily to follow that the media, in their various forms, are also entitled to communicate “to the whole public what that public has a right to hear and see”.

At paragraph 29 what is said is:

The applications for the suppression orders under consideration were made pursuant to ss 18 and 19 ‑ ‑ ‑

GUMMOW J: Wait a minute. Look at paragraph 26, Mr Bennett. You read us paragraph 25, maybe you should read paragraph 26, the statement from Justice McHugh in Fairfax.

MR BENNETT: Yes. He puts it in that paragraph – there is a dictum that goes a little further. His Honour says:

The fundamental rule of the common law is that the administration of justice must take place in an open court. A court can only depart from this rule when its observance would frustrate the administration of justice –

and he then adds –

or some other public interest for whose protection Parliament has modified the open justice rule.

He does not discuss there the extent to which that can be done, and he says the principle applies to making fair and accurate reports of what occurs in the courtroom. At paragraph 29 the rule we argue for appears to be recognised where what is said is:

The applications for the suppression orders under consideration were made pursuant to ss 18 and 19 of the Supreme Court Act. Whether the court possesses any inherent power to make such orders may be thought to be very doubtful, for they are directed to circumstances going beyond the administration of justice.

So, again, it seems to suggest the administration of justice is the relevant limit. The end of that paragraph says that:

para (b) of s 19 of the Supreme Court Act directed to the administration of justice –

Those are the submissions on the first part of the case.

HAYNE J: Just before you leave that first part of the case, going back to questions of what would be encompassed by the expression “it is in the public interest to do so” when it appears in section 42. Go to ARM v Secretary [2008] VSCA 266, which was the Victorian case you took us to earlier. At paragraphs 31 and 33 reference is made to evidence that was given in that case that acceptance or otherwise of which is not presently to the point, but at paragraph 31 in the last few lines immediately before 32 it seems that evidence was given in that case that disclosure of an offender’s name might in a particular case present a risk to the community because the person concerned might “feel hopeless and figure that they might as well just offend and go back into prison”.

In paragraph 33, in the last part of paragraph 33, there is reference to considerations of reduced – or publication leading to reduced compliance of people with treatment making them more likely to flee from orders or to seek to evade orders in the future. Does it follow from your submissions that none of those considerations can be legitimately taken into account in determining whether or not to publish the name of an offender?

MR BENNETT: Yes, your Honour, and we add to that that the evidence given by a particular doctor in a particular case is not ‑ ‑ ‑

HAYNE J: I understand that. My question is directed to, if you like, relevant and irrelevant considerations. Were it to be the case that it was demonstrated in court that publication of the particular offender’s name would more likely make that offender re‑offend, you would say that that would not be a consideration relevant to determining whether to make an order for suppression of that offender’s name?

MR BENNETT: Your Honour, it might be a relevant consideration if one had aliunde got to the threshold of demonstrating that it was necessary in the interests of justice to make the order. Once one had got to that stage, there may well be a further discretion as to whether the public interest requires that nevertheless it not be done or that it be done. Our submission is if one does not get to that threshold, all these considerations are irrelevant.

GUMMOW J: Notwithstanding section 15(2).

MR BENNETT: Yes, your Honour. All section 15(2) does is set out what the purposes are, but we simply submit that is not sufficient to justify an order ‑ ‑ ‑

CRENNAN J: But you need to read it with (3) and also section 16, because if you read all of 15 and 16, conditions may be imposed which will include looking at 16(3), but there may be instructions or directions given by the Adult Parole Board. If you look at (d):

treatment or rehabilitation programs or activities that the offender must attend and participate in –

So it is not just a general statement of purpose in section 15. You read the whole of 15 and 16 together. They are quite elaborate provisions for the imposition of conditions and directions which do entrench to a considerable degree on the personal liberty of the person subject to the extended supervision in the interests of care, treatment, rehabilitation, matters of that kind.

MR BENNETT: Yes, and those sections, of course, do not refer to the question of suppression orders. They are dealt with in a different part of the Act in Part 5. There is a serious question, I suppose, as to whether section 15 would apply at all to the making of suppression orders, but whether it does or it does not, it cannot on its own be sufficient unless one has the interests of justice.

CRENNAN J: It is certainly part of the context in which the suppression orders are made.

MR BENNETT: It is part of the context, yes, your Honour.

BELL J: It depends somewhat on the scope given to the expression “in the interests of the administration of justice” in the way you use it. It might be, on one view, that that concept, which I think you have conceded, might properly have been the test for the judicial discretion imposed in section 42. If that be right, it would then depend on the scope given to the words “the administration of justice”.

It might, on one view, extend to the administration of justice insofar as that takes up the matters embraced by considerations in section 15(2), both the protection of the community from depredations by a convicted sex offender and the promotion of rehabilitation of the offender. But another view of the “administration of justice” is that perhaps it is confined to the particular curial proceedings, in which case one can see why the Parliament might sought to have conferred a discretion in terms referring to the public interest and picking up the objects that one sees in section 15 and elsewhere in the provision.

MR BENNETT: Yes. Your Honour, that is so, but it is still empowering the court to do something and to suppress a vital piece of information about what it is doing.

BELL J: I am just taking up with you the question of the extent to which it is competent for a State Parliament to make provision for extensions to the exceptions to open justice, including an extension framed by reference to a judicial discretion that is broader than the interests of justice if the interests of justice are confined, for example, to the curial process, otherwise there may be very difference between the two expressions.

MR BENNETT: Well, your Honour, we submit it cannot. This Court is the ultimate interpreter of the Constitution and of implications in it and, we submit, this one is so important and so engrained in Chapter III that it cannot be overcome by a broad discretion to take into account the administration of justice. We see what has happened from the decision of the Victorian Court in ARM where they talk about privacy.

Turning to the freedom of political communication, there are a number of reasons put against us by the informant and the interveners as to why it does not apply. These are, first, that it does not apply to courts, political communication, secondly, that it does not apply to State matters, thirdly, that it does not apply to the mere publication of a name as opposed to other details and, fourthly, it is put against us it is appropriate and adapted because of public interest, and various other matters are suggested.

I will deal with those five matters separately. The five matters then are; application to courts, application to States, the merely naming a person, fourthly, the width of public interest and, fifthly, the appropriate and adapted suggestion. In dealing with application to courts we say two things. First, the freedom that needs to be protected here goes further, political communication, than courts. It goes to questions such as the repeal of the Victorian legislation, which, of course, is the campaign my client is waging. It goes to matters such as the effectiveness of the system of the various orders which are made under the Serious Sex Offenders Monitoring Act.

It goes to the system of criminal justice and the appropriateness of legislative requirements in relation to particular sentences and, of course, to the question of confidentiality itself. All those are legitimate matters of political communication. One of the matters I will have to deal with under the final heading is what I will call the circularity argument, that we cannot attack the legislation on the basis that the political communication which it prevents is committing a breach of the legislation for the purpose of advocating its repeal. That brings into play the flag burning cases in the United States by way of analogy. I will come to that in some time.

So the first answer in relation to the courts is that it is not just the courts here, it is far broader matters of legislation and criminal policy. In Nationwide News Pty Ltd v Wills (1992) 107 CLR 1, this Court applied the freedom of political communication implication to communications criticising a quasi‑judicial body and it is fairly clear, we would submit, from the language of that judgment that it would apply also to criticism of courts. If that case had involved a court rather than a quasi‑judicial tribunal, we submit the result would have been the same.

It is an essential part of the freedom to criticise government and organs of government that one be free to criticise courts, sentences imposed by courts, orders made by courts and the like and, more importantly, the conduct of the Executive in relation to courts. Let me take a very simple example which we have given in our submissions. Suppose the press want to ascertain whether a prosecutor at a criminal trial of a serious sex offender has correctly informed the court about prior convictions. It is almost impossible for the press to check that or test that so as to be able to make an informed criticism.

The same would apply in reverse if they wanted to criticise the prosecutor for failing to tell the court about ameliorating circumstances in prior convictions or aggravating circumstances. These are matters which are the subject of legitimate political comment by the media about the Executive through prosecutors and a law suppressing the person’s name making it impossible to find that the person has been convicted of this type of offence prevents that.

GUMMOW J: After Lange it is clear enough, it is not, that the subject matter is really a restraint upon legislative power, do you accept that?

MR BENNETT: Yes, your Honour, and here it is legislative power empowering a court to do something which ought not to be done.

GUMMOW J: You seem to be subjecting notions of contempt of court to this freedom in some way, which I do not understand at the moment. Contempt power comes out of Chapter III, not Chapter II or Chapter I.

MR BENNETT: Yes. There might be different reasons for reading down the common law in relation to contempt to comply with the Constitution, but that is not involved in this case.

GUMMOW J: That is not what I was saying. I was saying the power of contempt is inherent in Chapter III. You seem to want to qualify it in some way for some restraint which restrains the Parliament and I do not understand at the moment.

MR BENNETT: Well, your Honour, Parliament could not pass a law saying that contempt of court hearings will all take place in private and no one may report on what occurs at them. It could not say that and that is, in effect, what is being done here, at least in relation to the hearings where the orders are made and, if we are right about the construction of it, in relation to the criminal hearings as well.

FRENCH CJ: Mr Bennett, that might be a convenient moment.

MR BENNETT: Yes, certainly, your Honour.

FRENCH CJ: We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ: Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, there are five short matters in relation to the first half of the case I should just mention briefly. The first is that the document that has the selection of judicial and non‑judicial references to open courts has been provided. I will not go to it. It is simply a list of matters which, if there were time, I could dwell lovingly on, but I do not need to.

The second matter is that your Honour Justice Bell asked me about the psychiatric reports. Our concern so far as invalidity is concerned is the provision concerning the offender’s name. If it were to be severed we would not wish to say anything about that. If the Court was of the view that the whole thing fell because of the name, that would be a matter for the Court. We do not say anything about that. We are not concerned in this case with the issue about publication of material in psychiatric reports or if there is suppression. We are concerned with the suppression of names.

The third matter is I was asked about sections 18 and 19 of the Supreme Court Act. In our submissions, paragraph 26, those provisions are referred to and in New South Wales’ submissions, paragraph 15. There are quite a number of matters listed there. We would not accept that some of those are permissible matters within the legitimate exceptions. For example, one of them is public decency and morality and that does not go to the administration of justice. The others are concerned with national security, necessary for the administration of justice which is clearly all right, and there is one about the safety of a person, which is probably an implied exception, although it does not arise in this case. But we do not accept that all the matters set out in those sections are permissible, but certainly those sections include matters that are.

The next matter concerns a case called John Fairfax & Sons Ltd v Police Tribunal of (1986) 5 NSWLR 465. There are two passages in that case I should briefly refer your Honours to, both in the judgments of Justice McHugh. At the bottom of page 476 his states:

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice ‑ ‑ ‑

GUMMOW J: We looked at this before lunch. Is this not quoted in the Victorian Court of Appeal case?

MR BENNETT: I think it may be, your Honour, yes:

or some other public interest for whole protection Parliament has modified the open justice rule.

Those words, we submit, are obiter –

The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice -

That, we submit, correctly puts the test –

Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material –

et cetera. We submit that the words “or some other public interest” in the second sentence are words which are obiter and to some extent are inconsistent with the balance of the paragraph, which we submit correctly put the position.

CRENNAN J: I think the same phrase was used by Lord Diplock in Attorney‑General v Leveller Magazine, that is to say reference to the administration of justice or some other public interest as determined by the legislature.

MR BENNETT: Yes. Like this passage, it was not discussing that issue. It was a dictum referring to a possibility that might arise in another case and not really analysing it. We would submit the balance of the paragraph I have cited sets out the true rule and at page 481 his Honour says this, between B and C, the second sentence of the long paragraph:

It was argued that, since the Tribunal has power to exclude the public, it also had power to exclude from hearing evidence that section of the public which did not attend the proceedings. I do not accept this construction of that paragraph. The rules of statutory construction no longer accord to common law rights the presumption of immunity from statutory interference which they once enjoyed. Nonetheless some common law rights are of such importance that an intention to repeal or amend any of them will only be attributed to the legislature when the language of its statute is unmistakably clear. I think that the right to publish a fair and accurate report of court proceedings is a common law right of sufficient significance to fall within this preferred category.

Then that is illustrated by reference to contempt of court. The fifth and final matter left over from the first part of the argument is this. It was suggested to me in argument that the prohibition in section 42 only applied to identifying a person in the context of a supervision order rather than in the context of having been convicted.

Now, that is not, we would submit, a natural reading of section 42. It certainly is not the view which is taken in relation to this prosecution, and it is not the view taken by the OPP in her submissions because if your Honours go to paragraph 19 of the informant’s submissions, your Honours, what is said is:

The order is not retrospective: it does not attach criminal sanctions to publications before it was made. However, it does prohibit publication of material which previously was not prohibited to be published and which may indeed have been previously published. The republication of that material . . . would expose the publisher to punishment –

et cetera. That can only relate to the fact of a conviction, not to the material at the time the order is made, when the supervision order is made.

BELL J: Why is that the natural reading of 42(1)(c)?

MR BENNETT: Because, your Honour ‑ ‑ ‑

BELL J: If one does not understand 42(1)(c) as concerning an order for non‑publication of information that might enable an offender who has appeared to be identified, what is the limitation on it? What permits an offender to have their name in the telephone book if there is not a limitation by reference to the proceedings?

MR BENNETT: We submit, your Honour, the natural meaning is enable the offender qua offender to be identified, which is the view the OPP takes, and it is the view taken in these prosecutions.

BELL J: Put to one side these prosecutions; they are not before us. The challenge to the validity of the legislation is before us. For my part, it is not apparent that it has the breadth that you attribute to it.

FRENCH CJ: It cannot be to be identified in an unqualified sense. It must be to be identified in some capacity, you say as an offender, and the alternative construction is as an offender, the subject of ESO proceedings, or proceedings before a court under this Act, to use the language of subsection (1).

MR BENNETT: Yes.

GUMMOW J: What is identified is an offender who has appeared or given evidence in the proceeding. It is the fact of this individual having appeared and given evidence in the proceeding which is the subject of the provision.

MR BENNETT: Your Honour, in my submission, it is the offender –

GUMMOW J: Otherwise the words “or another person” are not ejusdem generis with “offender”.

MR BENNETT: We submit the words “who has appeared” and following qualify only the words “another person”.

HAYNE J: But therefore you read it, do you, as extending to any person who has committed any offence of any kind whatsoever?

MR BENNETT: No, your Honour, it has to be ‑ ‑ ‑

HAYNE J: Exactly. It has to be an offender of a kind with whom the Act is dealing, at least, does it not?

MR BENNETT: Yes.

HAYNE J: Once you have taken that step, Mr Bennett, how do you stop at the point before arriving at the destination that the offender to whom reference is made in 42(1)(c) is the offender who is the subject of the proceeding under the Act?

MR BENNETT: Your Honour, it is taking such a person and publishing the fact that he is an offender of the relevant kind. Your Honour, in one sense it does not matter because in this case the identification was clearly as a person in relation to whom a supervision order was being made and I will show your Honours that in a moment.

In fact, this might be a convenient time to do it. If your Honours go to our submissions in‑chief, your Honours will see there are three annexures. Before I go to them, may I just show your Honours the charge in the cause remove book at pages 2 to 4 and your Honours see that the first charge appearing at page 2, line 18, relates to an article on the internet. The same applies to the second charge on the top of page 3. The third charge at line 20 of page 3 is “stating his [name] at a public protest rally”, and the other charges again, on page 4, relate to the internet.

Now, we would submit that the actual publications on the net referred to are incorporated by reference in the charges and therefore may be treated as part of the record. We have annexed them to our submissions. I would submit I do not need to tender them; I am entitled to refer to them as part of the, in effect, charge against us to show what that charge is. The charge would be meaningless without saying that. I will not spend a lot of time on this, but if your Honours go to the ‑ ‑ ‑

GUMMOW J: So we are not talking about the press in this case, are we?

MR BENNETT: Yes, your Honour.

FRENCH CJ: Ultimately ‑ ‑ ‑

GUMMOW J: This is publication on your client’s website. What does that have to do with the press?

MR BENNETT: I am referring to this for the purpose of showing that it is political discussion.

GUMMOW J: I see.

MR BENNETT: The name is mentioned in the course of, and relevant to, that political discussion. If we start with the third one, which is the very last page of the annexures to our submissions, your Honours see:

The serial rapist and paedophile whose identity suppression was one of the main reasons for our Name Them and Shame Them rally on the steps of Parliament House last month has again had his named suppressed.

Then there are some references to publication on the radio.

Those of you who attended that rally know who I am talking about because I announced it at the rally and several thousand of you repeated it. But on 3AW I couldn’t tell you his name, or his nickname . . .
The man, known as the [X] Rapist, is –

and then he is named –

He terrorised Melbourne girls and women for a decade and was recently released from jail. Yet again.
Lawyers for the Sunday Herald Sun tried, unsuccessfully, to have the suppression order lifted last week. And editorially the newspaper said: “We agree with Prime Minister Rudd that paedophiles should be unable to hide. He said people should be told when paedophiles move into their communities. The public has a right to know”.

Then there is a description of the man’s crimes –

committed his last sexual assault only six months after being released the last time. He indecently assaulted a 12‑year‑old girl in the presence of an eight‑year‑old after befriending the younger girl’s mother.
And yet County Court judge [So and So] deemed suppression of his identity would best serve the interests of the community.
She talked about the “emotional and psychological effect on the respondent . . . ” What about the victims? What about the emotional and psychological effects on them? She also said it could affect his rehabilitation.
[He] was so rehabilitated the last time he got out that he didn’t last six months before attacking a 12‑year‑old child.
So once again, under what I consider legal abuse of the Serious Sex Offenders Monitoring Act, we have cases where you aren’t supposed to know who a paedophile is or where he is living.
In this case we know Police believe [he] committed many other sex assaults for which he has never been charged. We know that in jail he refused any counselling . . . We know that a judge said he was resistant to reform and a psychiatrist warned that if released he would assault girls and women again.
Personally I don’t care about his rehabilitation. His list of crimes, his serial record, is so bad that a mechanism must be found to keep violent predators like this behind bars. Like they now have in New South Wales and Queensland. And if ever released on parole must be on such a short leash they have no opportunity to attack again.
The community not only deserves it. We should demand it. This law was meant to protect people not perpetrators. It is tainted. And it is fatally flawed. And it must be repealed or amended.

We say rhetorically, what could be more political than that. It is advocating the repeal of an Act of Parliament or part of it and it is giving emotive reasons why that should be done and putting a political viewpoint which he is entitled to put and which, as the House of Lords said in the case I took your Honours to, would be much less vivid without references to the names and the matters in it. I will not go right through the others, but your Honours can see again, if your Honours go to the next one backwards:

And so it is on again. And you wonder when will it ever end. Another serial sex offender is out on the loose in this community and you are not allowed to know his name or see his photo. He could be living next to you. Or next to your children’s school.

It goes on to describe his crimes. Then at point seven:

Apparently he is one of 18 serial paedophiles who have been released on Extended Supervision Orders. How may have re‑offended? We are not allowed to know.
The sick irony here is that we applauded when the Government appeared to get tough . . .
Nobody mentioned to us that they could return to the community incognito . . . without the public knowing who they are . . .

Then there is a statement by the Police Minister which he criticises. Again, pure political speech to which the name is relevant. The first one is in the same category and that contains some repetition from the third one, so I will not go back to that.

The point we make is this and a speech at a public protest rally against that legislation is classic political freedom of speech which is protected. It is certainly, to some extent, criticising sentences which may or may not be within the protection, and I will come to that. The main thing it is criticising is the legislation – the legislation which permits the release, the legislation which permits the supervision orders and primarily, of course, legislation which commits the suppression orders. That, in our respectful submission, is squarely within it.

The next argument that is put against us in this area is that it does not apply to States as opposed to the Commonwealth. We would submit that the implied freedom clearly does apply to States as well as the Commonwealth and this Court has made that clear in a number of places. This is all set out in our submissions in reply in paragraphs 10 to 19 and we note the arguments put by the Commonwealth, New South Wales and Queensland. It was rejected by this court in Stephens where it suggested the implication may be found in the States’ Constitutions and one avoids the problem that way. In Lange, of course, it was applied to defamation of a former New Zealand Prime Minister.

GUMMOW J: This point you are dealing with is not taken against you by the informant, is it?

MR BENNETT: No, your Honour, only by two of the interveners.

GUMMOW J: Yes, it is the old problem. There are some allies the parties do not always necessarily want.

MR BENNETT: If your Honours wish not to call on me on this point I will go on to the next one. We remind your Honours – this is paragraph 12 of our submissions in reply – of the passage in Lange v ABC. Lange (1996) 189 CLR 302, of course, involved defamation of a former Prime Minister of New Zealand which is a fortiori for the States and further removed from the Commonwealth. The relevant passage is at pages 571 to 572. The judgment of the Court at point 4 of page 571 says:

Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia.

Then some reasons are given. Then, the last paragraph:

Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege –

which is found under the Constitution –

whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments.

In relation to amending the Constitution this is a little bit of a long shot, but of course one thing that may follow from some of the matters I read to your Honours from the website is that if Kable itself remains good law there should be a constitutional amendment to override it so courts can order people to be kept in gaol indefinitely. I only mention that as a – that is slightly more remote from the principal argument being put but the principal argument being put is that the State Act should be repealed. The passage goes on – the sentence that goes over the page:

The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable.

That is a judgment, of course, of the whole Court in Lange. There are other matters which we refer to in paragraphs 13 and following which emphasise that in this case. There is a federal Labor Party campaign policy, the 2007 election, which refers to the issues about suppression of information in this area. We mention in paragraph 15 that there has been debate about national legislation for suppression orders.

There is now a draft Standing Committee of Attorneys‑General model Bill for enactment by the Commonwealth, States and Territories. It is in the form of a New South Wales Bill titled Court Suppression and Non‑Publication Orders Bill. It gives courts powers to make suppression orders, amongst others, on the ground that it is otherwise in the public interest, and the public interest significantly outweighs the public interest in open justice. That may or may not be valid – it probably would not be – but for present purposes that shows that this is a national issue. It is not just a Victorian issue. We refer to the Standing Committee of Attorneys‑General and the dependence of States on GST payments and so on.

Communication about the political and government control over the activities of released or escaped sex offenders cannot really be said to stop at State boundaries. They can cross State boundaries. They can use the internet across State boundaries. It is an issue which is discussed at the national level. The Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 – in the second reading speech there is a passage cited in paragraph 19:

Responsibility for combating child sexual exploitation is shared between the Commonwealth, States and Territories and complains about . . . the extensive use of the Internet by child sex offenders.

We submit that this argument raised by two of the interveners should be rejected. We also point out, of course, that Levy v Victoria involved Victorian legislation and protesting about duck shooting, which was clearly a State matter. Coleman v Power, of course, involved Queensland legislation about insulting words.

CRENNAN J: Does the Victorian Charter of Human Rights and Responsibilities have any role to play in the context of this discussion?

MR BENNETT: Your Honour, it would not give us the right to the acquittal of it, and we have raised it. It might have some relevance, but we have not raised it.

CRENNAN J: There would be both a privacy right and a freedom of expression right.

MR BENNETT: Yes, it would involve both of those.

GUMMOW J: Is that not the same as the House of Lords Guardian Case on which you seem to rely.

MR BENNETT: I am sorry, your Honour.

GUMMOW J: You seem to rely on the House of Lords in the Guardian Case, Guardian Newspaper Case, right, which is balancing two relevant provisions in the Human Rights Act (UK). Those two rights seem to be those which Justice Crennan has mentioned to you as found in Victoria, that somehow you eschew it when it gets close to home.

MR BENNETT: Yes. Well, your Honour, partly because it does not give us the result that we need. Also there is a question – it applies to public authorities, rather than courts – yes, the definition of “public authority” in the Victorian Charter specifically excludes court, I am told.

FRENCH CJ: All those things, and the open court principle which you enunciated in opening, would be relevant to the constructional choices that one should make in relation to section 42. It might be, for example, that on its proper construction section 42 does not authorise an order of the breadth that you complain of in the context of these proceedings below, but you seem to be proceeding on the basis that there is no constraint on the breadth of the power beyond the terms “in the public interest” by reference to the open court principle and perhaps even matters which would be applied in the application of the interpretative rule under the Victorian Charter of Rights and Responsibilities.

MR BENNETT: Yes, well, it is a double trouble problem, your Honour. First, if we relied on it there would be constitutional problems about whether there would be a matter which this Court could deal with. There are ‑ ‑ ‑

FRENCH CJ: I am just talking about the construction of the section.

MR BENNETT: Yes, and your Honour, so far as that is concerned, as your Honour says, there are provisions both ways, as in the European Charter, and one might need to embark on an elaborate analysis which we – anyhow, we have not raised that in these proceedings.

HAYNE J: How are we meant to construe this Act, Mr Bennett? The validity turns on first understanding what the Act says it does. You assert no assistance at all is to be had in construing this Act by consideration of any of the matters just discussed. Is that the position you are adopting?

MR BENNETT: We have not argued for any, your Honour.

HAYNE J: Yes, I see.

FRENCH CJ: You concede the validity of the orders made in the County Court if section 42 is valid on your construction of it?

MR BENNETT: Yes, your Honour, if the County Court has misconstrued the legislation in making the orders that would not help me because the prosecution depends on the factum of the order being made. So there would not be an opportunity for a collateral attack even of the County Court order, certainly not of the Supreme Court order. We pin our colours squarely to the propositions that the suppression orders in the width with which they are authorised in the legislation offend against the two constitutional principles to which we refer.

GUMMOW J: You do not rely on section 32 of the Victorian statute, Charter of Human Rights. Section 32 is quite a distinct provision from section 38 which is dealing with the conduct of public authorities. The human rights spoken of are those in Part 2 starting at section 7.

MR BENNETT: Yes, I am sorry, I will just have it found. I am grateful to my learned friend.

GUMMOW J: You had this case removed into this Court, Mr Bennett.

MR BENNETT: Yes.

GUMMOW J: You are here. You do not have to stay here if you are not going to present the full argument, which would incapacitate us from writing a proper judgment dealing authoritatively with these questions for other people in other cases.

MR BENNETT: Yes. Your Honour, the problem with section 32 is that one has the competing human rights principles.

GUMMOW J: Exactly.

MR BENNETT: But, as I say, the Charter only applies to a public authority.

GUMMOW J: That is not quite right, is it, Mr Bennett?

HAYNE J: No, it is not.

GUMMOW J: The Charter has various branches to it.

MR BENNETT: Yes.

FRENCH CJ: It says all statutory provisions must be interpreted. It is a constructional principle of general application.

MR BENNETT: Yes.

FRENCH CJ: Even without it, of course, you have the principle of legality insofar as the open court principle is concerned.

MR BENNETT: Perhaps a convenient course, your Honour, might be for me to deal with that question in reply because that will not be today obviously.

HAYNE J: Mr Bennett, let me just understand this, I speak only for myself, but is the whole of this argument to go forward without you asserting what is the proper construction of this statute with regard to all of the principles that on their face appear applicable? For myself I find that not satisfactory.

MR BENNETT: Yes. Your Honour, I will deal with that, if I may, in ‑ ‑ ‑

FRENCH CJ: It is really not a matter of reply. This is an integral part or has to be an integral part of your argument. The matters were moved into this Court in relation to the validity of section 42. The first question is, what does section 42 mean? How is it properly to be construed? Only then can we go to the question of validity.

MR BENNETT: Well, your Honour, the issue of construction of section 42 as to whether it applies to a suppression of a name qua offender or a name only qua applicant for a relevant order – I am sorry, a person who is to be the subject of a supervision order, that issue is one on which we and the informant are in agreement and, as I say, two of the interveners – I am sorry. Yes, that is an issue on which we are in agreement.

That issue is not affected, one would have thought, either way except insofar as, I suppose, the general approach to the section, we would submit, should be to read it down. The second ambiguity in the possible matter of construction arising in section 42 is the words:

if satisfied that it is in the public interest to do so –

and to the extent that ‑ ‑ ‑

GUMMOW J: Well, the public interest must include, I would have thought, Part 2 of the Charter. It could not be otherwise.

MR BENNETT: Yes. Your Honour, the question here is, not whether the public interest includes considerations such as open courts and freedom of communication, but whether the minimum standard that there must be necessary for the administration of justice is required to be proved and that is a matter which goes beyond the Charter. That is concerned with open courts rather than with the implied freedom.

The next matter concerns the reference to naming and the argument that the naming of a person is not an essential part of the implied freedom. I have taken your Honours to the various passages in Re BBC where that argument is rejected. The House of Lords correctly, in my respectful submission, takes the position that the argument is more cogent and has greater appeal in the media if done by reference to names.

Your Honours can see that in the internet matters I have referred your Honours to annexed to our submissions. We have pointed out also in paragraph 20 of our submissions in reply that in the debate in the Upper House, Mr Richard della Riba found it expedient to name three notorious sex offenders, one of them 15 times in the course of a speech.

We simply point to that as an illustration of the proposition that political advocacy on this sort of issue is facilitated, and significantly facilitated, by the ability to name people. The oratorical device that was adopted at the public protest rally of getting the crowd to chant the names is itself, one would have thought, an oratorical device designed to direct attention to the anomalies in the legislation which is being attacked.

The next argument is the circularity argument. This is the argument that says I cannot call on the need to break the statute in attacking it as part of the necessity for political debate in relation to it. That argument is, we would submit, not correct. The example given against us by the informant in her submissions is that if a law forbade theft and a person was to commit theft as part of a protest against that law, the conduct of the theft would not be protected, and of course it would not. The analogy is a law which says theft is prohibited and no person may publicly advocate the repeal of this law. If one protested against the law by breaking the second proposition, that would be a political communication of a type the law would not be entitled to prevent.

That was what happened in the flag burning cases. I will not take your Honours to those cases. We have summarised them sufficiently in paragraphs 21 to 23 of our submissions in reply. There were two cases. It is made clear that part of what caused invalidity in the second case was that the flag was being burnt as part of a political process against a law forbidding the burning of American flags. So there are certain types of law which expressly or impliedly interfere with political criticism aimed at having that law repealed and to the extent that they do that, in my respectful submission, they fall foul of the implication.

At its lowest possible level, that would mean that the law is invalid in its application to people who seek to use the names in the course of protesting against the law itself and calling for its repeal. That would be the lowest possible level. Of course, this is a higher level than that because here one is talking about the general political discussion of sentencing policy, keeping people in gaol, releasing them into the community and suppressing their names and, in my respectful submission, in that context the use of the names is clearly an integral part of the political protest.

Finally, I can deal very briefly with the various suggestions that it may be appropriate and adapted. There is no complete submission to this effect anywhere in my learned friend’s submissions. There are a few hints of things which might cause it to be appropriate and adapted ‑ ‑ ‑

KIEFEL J: Is this in connection with the implied freedom of political communication argument?

MR BENNETT: Yes, your Honour. This is dealt with in paragraphs 4 to 8 of our submissions in reply and the only one I really need to deal with is the rehabilitation one and we put, as I say, three things, which are put in paragraph 8 of our submissions, against that; first is it is not a purpose necessary for the administration of justice, secondly, there is no evidence supporting the proposition that suppressions orders promote rehabilitation and, if anything, empirical argument of the type used in Castlemaine Tooheys and Betfair and other cases where this Court has talked about appropriate and adapted, that rather suggests the contrary for three reasons.

The first is that the concealment of names from neighbourhood parents who might want to warn their children or not send them down a street in which one of these people lives, is something which one would have thought a priori it is more likely to promote recidivism than to promote rehabilitation because it facilitates recidivism by enabling the person to be anonymous in the community and preventing parents protecting their children in a sensible way. That is part of the political argument of course, but its relevance here is that it means one cannot just say it is appropriate and adaptive to rehabilitation without weighing factors that may militate – a priori factors that might militate in the opposite direction.

KIEFEL J: That depends on what test you are applying when you say reasonably appropriate and adapted. If you are referring to Castlemaine Tooheys, but more particularly Betfair, are you not referring to the test of reasonable necessity which tests the effectiveness of measures by reference to alternative measures which are just as effective? I think that is what was applied. That is not what you are doing here.

MR BENNETT: No. Well, your Honour, there is an alternative method here which might partially achieve the result and that is simply permitting or requiring the offender to change his name and prohibiting publication of the new name. Now, that might not achieve one of the objectives, it would not enable the community to protect itself, but it might achieve the other objective by permitting political discussion of the issue using the old name under which the person was convicted and became notorious. That is perhaps one example of a way in which it could have been done.

KIEFEL J: But what you are doing in paragraph 8(c) is applying some other type of test than was applied in the section 92 cases, at least the one I have mentioned.

MR BENNETT: In part I am.

KIEFEL J: But I am not quite sure what you mean by it. If you were not using the words “reasonably appropriate and adapted”, what would you say you were doing in a proportionality sense? You are what?

MR BENNETT: I suppose this Court could have said in Betfair, we consider that overall the proposition that permitting a person to bet against a horse on a betting exchange is likely to have an adverse effect on the integrity of the racing industry is not something that is likely to happen.

KIEFEL J: You mean it is not effective that the Court takes a position in relation to the potential advocacy of the legislation?

MR BENNETT: Yes. The test for being appropriate and adapted may require that. It may require ‑ ‑ ‑

KIEFEL J: It may require all sorts of things.

MR BENNETT: It may, your Honour.

KIEFEL J: It is somewhat uncertain.

MR BENNETT: But that is way it is put against us. Someone says it may promote rehabilitation, to which our answer is yes and it may interfere with it too.

KIEFEL J: But that means that it is no more than suitable for its purposes, perhaps - what is put against you. But I thought you were going much further than that in the reverse to meet it.

MR BENNETT: We give three examples of cases where it may impede rehabilitation. The second is if a convicted paedophile genuinely repents, regrets his past actions, but knows he may re‑offend because he cannot control himself, he might want to go on television, make a public statement confessing – outing himself, if one likes, to use the modern colloquialism – and warning the public about his propensity. He could not do that. He would be in breach of one of these orders, disclosing his own name in the relevant context.

A third point is that a suppression order may reduce the adverse consequences for the offender of the legal sanction. One of the sanctions that is part of our criminal law is the public humiliation of being convicted and the matter being reported and if one knows that is not going to happen, to some extent that is going to lessen the deterrent effect of the punishment so ‑ ‑ ‑

HAYNE J: That comes back to this question that you were going to return to of when these orders are made. They are not made at the time of conviction, are they?

MR BENNETT: No, it seems that they are normally made later, as far as we can see. The Act seems to contemplate that.

HAYNE J: Not simply normally, but the Act is the scheme that makes perfectly plain, does it not, Mr Bennett, that these are orders which are to be made towards the end of an offender’s sentence?

MR BENNETT: Yes, that seems to be the ‑ ‑ ‑

HAYNE J: By “sentence” I mean time served in custody, or even time served at large while still under sentence.

MR BENNETT: Yes, that does seem to be the case, your Honour. But as my learned friend ‑ ‑ ‑

HAYNE J: So it says nothing about whether an offender is named at the time of conviction?

MR BENNETT: No, your Honour, it does not, but it does have the retrospective effect, as is said in my learned friend’s submissions, of preventing one investigating, finding out, and reporting on how rehabilitation is going as a general matter, how many people re‑offend, how many do not, when supervision orders are made, and so on. One cannot sensibly discuss the desirability of the legislation concerning supervision orders without knowing the recidivism rate. If one cannot publish this sort of information, it becomes impossible for an informed press to work those things out so as to express an informed conclusion.

HAYNE J: The particular circumstances that yield the controversy in this matter include, perhaps are limited to what appear at cause remove book page 120, paragraph 4, I think, paragraph 4 of the order of Judge Millane subject to receiving the further page of Judge Rizkalla’s order, I assume is substantially to the same effect in those orders. What does order 4 mean?

MR BENNETT: Your Honour, our submission is that it means that one cannot identify the respondent as a person who is a person to whom the Act applies, a person convicted of a serious sex offence and the circumstances of it and the details of it.

If I am wrong in that, I still get the same result in this case if it only forbids naming him as a person in relation to whom a supervision order has been made because that is essential, for the reasons I have given, to a criticism of the supervision order system and the legislation and, specifically, criticism of the secrecy provisions in the legislation.

GUMMOW J: Just assume for a minute an order on its face, as this one is, is made under section 42 but which in truth is fallible, is it open to collateral attack at the time of the prosecution under 42(3) or does the prosecution simply found upon the existence in fact of an order? Do you see the problem?

MR BENNETT: Yes. Your Honour, the answer to that seems to be – I will just get the section out – I think 42(3) operates on the factum rather than the correctness of the order and if the order is made as a result of a misapprehension of law or in a way which would involve if it were challenged by way of merits review ‑ ‑ ‑

GUMMOW J: You have to read it then as an order purportedly made under this section, do you not?

MR BENNETT: Your Honour, if the section is invalid ‑ ‑ ‑

GUMMOW J: No. Assume it is valid, that the court should not have been satisfied under 42(1).

MR BENNETT: Then, your Honour, the court has made an error of law. It has made an order but it is an order made with an error of law, which could be ‑ ‑ ‑

FRENCH CJ: If on its proper construction the section does not authorise an order of the width that is made in a particular case, is that an order under this section?

HAYNE J: And does the answer differ according to whether the order is that of the County Court or the Supreme Court?

MR BENNETT: Certainly if the order were an order of the Supreme Court, it would not be open to collateral attack. If it is an order of the Country Court, it is – I know this is not the question I am asked, but if it is made under an invalid provision or a provision which is relevantly pro tanto invalid, then the section does not operate, but if there is simply an error of law in making the order, it would depend, I suppose, on a close reading of cases like S157 and some of the migration cases about ‑ ‑ ‑

FRENCH CJ: There is no general privative provision here.

MR BENNETT: No, there is not, but an analogous argument would apply as to whether it is an order under the section at all or not. Certainly that is a matter on which neither event would save the sections from invalidity or pro tanto invalidity. I am reminded that the word “might”, anything which might identify the offender, that clearly, of course, ties in with past events.

BELL J: I do not understand that submission. One is still concerned with what it means to publish information that might enable an offender who has appeared in the proceeding to be identified. I do not think the last submission really goes to that question.

MR BENNETT: Yes. We put it as a dilemma, your Honour. If it relates to the offence, identifying the offender with the offence, as we submit, then it is a much more serious infringement of both the principle of open justice and the freedom of political communication. If it goes only to identifying as a person in relation to whom a supervision order is being made, and it is hard to see why that would be so, why, one asks rhetorically, should it be permissible to identify the offender and his offence but not to identify the fact the fact that there is a supervision order? Assuming that that is the construction, it still suffers from both vices because the supervision order is an order made by a court and it is made relevantly then as part of a process as to which publication is prohibited, and it is in breach of the implied freedom because a person may wish, as my client does, to attack the supervision order regime and advocate repeal of the provision and that clearly is political debate.

I have dealt with protection of the privacy of the offender as being insufficient and I have dealt with the need for it to be in the interests of or required for the administration of justice. I think those are the matters arising in relation to the appropriate and adapted argument. I should tell your Honours about the different approach that has been taken in the United States. There is what called the Jacob Wetterling legislation which requires people in this category be identified, their addresses to be on public registers which are searchable by the public and so on, and we have given your Honours details of that. There is a discussion in the United States Supreme Court, which I will not take your Honours to, but in a case ‑ ‑ ‑

FRENCH CJ: What proposition does this support?

MR BENNETT: Your Honour, it just goes to the appropriate and adapted aspect, your Honour. This shows what is being done in the United States. There is consideration of this sort of legislation in Connecticut Dept of Public Safety v Doe (2003) 538 US 1. I will not take your Honours to it.

GUMMOW J: I think there is a more recent case earlier this year in which Justice Breyer gave a decision of the court on legislation of another State.

MR BENNETT: Yes, I do not have that.

BELL J: These are matters of policy that by and large in Australian jurisdictions have been resolved against people being required to put signs in their windows saying they are sex offenders, I think.

MR BENNETT: Yes.

BELL J: I am not quite sure where this takes you, Mr Bennett.

MR BENNETT: Well, your Honour, only to show that when one looks at whether something is appropriate and adapted and says it may help rehabilitation that there are countervailing factors which need to be looked at. That is all we and - the United States has, as your Honour says, gone in a different direction.

I have not dealt with and it was suggested when the matter was removed that I should not deal with, and I do not propose to beyond a couple of sentences, the 2009 legislation. I only want to say this. That in Street v Queensland Bar Association, your Honours recall that the relevant regulations about the admission of barristers in Queensland were amended after Mr Street had been refused admission and before the hearing in the High Court.

The High Court took the view that it would nevertheless consider the new legislation as well and express a view that it was invalid as well. It appears in the judgment of Chief Justice Mason at pages 478 and 479. I would only say this about the 2009 legislation. If your Honours look at it, it is clearly a fortiori to the legislation ‑ ‑ ‑

GUMMOW J: You mean 2006, do you not?

MR BENNETT: It is 2009, I am told, your Honour. It is clearly a fortiori to the present legislation. It creates presumptions ‑ ‑ ‑

GUMMOW J: You are talking about the Serious Sex Offenders(Detention and Supervision) Act 2009?

MR BENNETT: Yes, your Honour. What that does is, it says, in effect, that you suppress the name unless there is some good reason to the contrary. I will not take your Honours to it except to say that it may illustrate the dangers of this sort of legislation that one goes to the next step and your Honours may wish to express a view on it for the same reason that a view was expressed in Street. It certainly affects things like my client’s conduct in the future and the media’s conduct in the future generally. I do not need to address any argument to it because it is clearly a fortiori, but your Honours may wish to refer to it and say something about it.

GUMMOW J: Does the repeal by section 200 of the 2005 Act preserve the pending prosecution of your client?

MR BENNETT: Yes, your Honour. I think the Interpretation Act would do that in any event, but yes.

GUMMOW J: It is just under the Interpretation Act, is it?

MR BENNETT: Yes. I am only charged under the old legislation. For those reasons, we submit that the provisions under which we are charged

are invalid and that the Court should make appropriate declarations and dismiss the information. The matter removed is so much of the case as concerns the constitutional challenge. Clearly, if your Honours resolve that in my favour, the appropriate order would be for the information to be dismissed because there would be nothing left and that would apply whether they were totally invalid or pro tanto invalid, at least to an extent that covers what is charged against the defendant in this case. May it please the Court.

FRENCH CJ: Yes, thank you, Mr Bennett. Yes, Mr Silbert.

MR SILBERT: If the Court pleases. Can I just, before treating the legislation and the construction of the section, refer your Honours to a passage from Fardon v Attorney‑General. There is no need for your Honours to go to it. It is a statement by Chief Justice Gleeson at pages 588 to 589 of the report of Fardon (2004) 223 CLR 575. At page 588, paragraph 9 his Honour cites a paragraph from Justice Deane in Veen [No 2] where he says:

The facts of the case reveal a common problem with which court and legislatures have to deal. Although he dissented in the second case, Deane J said:

“[T]he protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts”

The hope expressed in the final sentence relates to a matter of legislative policy rather than constitutional significance. That, no doubt, is why it was described as a hope about a statutory system.

I would simply refer your Honours to that as being analogous to the system set out under the Serious Sex Offenders Monitoring Act. If could take your Honours just very briefly through that Act because my friend did not do it. Part 1 sets out the purposes:

to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences –

against children –

and who are a serious danger to the community to be subject to ongoing supervision –

once released from prison. Section 2 goes on:

(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 –

Now, it seems to come out of the criminal justice system, this scheme, and to be administered by the Department of Justice and it, under section 2, “gives functions to the Adult Parole Board ‑ ‑ ‑

FRENCH CJ: I am sorry, did you make a reference to sexual offences against children?

MR SILBERT: Yes, your Honour.

FRENCH CJ: Where does that appear?

MR SILBERT: Your Honour, the Act, effectively, is restricted to sexual offences against children. If your Honour looks at section 4 it defines “an eligible offender” as someone ‑ ‑ ‑

FRENCH CJ: We have everything listed in the Schedule. I just thought you were reading for a moment from the “Purpose and outline”.

MR SILBERT: Yes. That is what I am about to refer to your Honour to –has been sentenced to and is serving a term of imprisonment for an offence set out in the Schedule. If your Honours go to the Schedule which is at – I am looking at Reprint 1. It is at page 49. It there details the offences which qualify a person as an eligible offender and the Schedule details a long list of offences, I think 41 in total, all of which relate to sexual offences against children.

HEYDON J: Is that true of item 13?

FRENCH CJ: Bestiality?

MR SILBERT: By and large, your Honour. Perhaps I can go to the schedule in the second reprint. The majority of those sections referable to section 3(1) relate to sexual offences against children. The primary aim of the Act is to deal with sexual offenders who have committed ‑ ‑ ‑

FRENCH CJ: But you accept it picks up things like sexual or indecent assault, entering a building as a trespasser.

MR SILBERT: Yes, I do, your Honour. It certainly picks up some other offences which do not relate to children but ‑ ‑ ‑

FRENCH CJ: The only reason I asked you the question was that I was reading the purpose and outline and I heard you say the words “against children”. I thought I had missed something or that I had the wrong reprint.

MR SILBERT: No, your Honour. The submission simply is that the eligible offender is, by and large, referable but not exclusively referable to sexual offenders against children. Once you get to an eligible offender under Part 2, the Secretary to the Department of Justice – so this is not a function of the Victoria Police; it is vested in the Executive Government – applies for an extended supervision order under section 5, and section 6 provides for an application to be accompanied by an assessment report.

Under section 8, the assessment report must address specified criteria and provide an assessment of the risk that the offender will re‑offend if released into the community and not made subject to an extended supervision order. Section 10 then relates to the hearing of an application, and section 11 is the critical section. It directs that a court may only make an extended supervision order if it is satisfied to a high degree of probability that the offender is likely to commit a relevant offence if released from prison, and not made subject to an extended supervision order.

FRENCH CJ: Just before you go any further, there is nothing in the Act that requires the hearing of an application for an extended supervisory order to be dealt with in camera.

MR SILBERT: No, your Honour.

FRENCH CJ: So that ordinarily would be an open hearing.

MR SILBERT: Absolutely, your Honour. There is nothing in section 42 that requires that. Nothing in the Act requires it to be in camera. The question of open justice really is confined to the question of dissemination of reporting of the suppression order provisions. Leading up to section 42, which obviously has a construction problem that I must address, section 12 provides for the extended supervision order, its duration, conditions and review. Sections 13 and 14 provide that the extended supervision order commence on the completion of a sentence of imprisonment and may be for a period of up to 15 years.

Section 15, which reference has already been made to, specifies the conditions and expresses the purposes of the conditions as, first, to ensure the community is adequately protected by monitoring the offender and, second, to promote the rehabilitation, care and treatment of the offender. It does not need to be emphasised that we are dealing here with people who have served their sentences of imprisonment and are subject to release therefrom into the community. It is a system devised to monitor that release into the community.

Section 16, which I think Justice Crennan has referred to, provides for the regulation of the offender whilst being supervised with a number of criteria – clearly an attempt to monitor and control the offender – and 17, 18 and 19 provide for the expiry, the renewal and the supervision of extended supervision orders, and 21 for the renewal of an extended supervision order at periods of not more than three years ‑ ‑ ‑

FRENCH CJ: There is provision for victims’ submissions, I see ‑ ‑ ‑

MR SILBERT: Yes, there is, your Honour.

FRENCH CJ: In relation to directions that might be made and so forth from time to time.

MR SILBERT: Yes, there is.

FRENCH CJ: How do the victims get to know the extent of the supervisory order proceedings?

MR SILBERT: My understanding is that they are notified by the Secretary of the Department of Justice if an application is to be made. Then under 23 it provides that “the court must revoke”, that is to say:

must revoke the extended supervision order [on review] unless satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if in the community and not subject to the extended supervision order.

So the presumption is in favour of revocation unless there is satisfaction to a high degree of probability that the offender is likely to commit a designated offence.

HAYNE J: Is it the effect of section 13 that an extended supervision order commences only at the completion of the whole of the term or terms of imprisonment that have been imposed for the offending that makes the offender an eligible offender?

MR SILBERT: When your Honour says the whole of the term, does your Honour include a non‑parole period in that?

HAYNE J: Having regard to 4(2) and 4(3), it would seem to me that that includes service of the sentence in custody and service of the sentence at large on parole.

MR SILBERT: Yes, your Honour. Custodial sentence is defined under section 3, the definition section:

custodial sentence means –
(a)an order made by a court sentencing an offender to be imprisoned or detained in a prison or police gaol in respect of an offence; or

(b)an order made under section 93A of the Sentencing Act 1991 –

HAYNE J: Section 3(2) and (3) pick up the offender serving a sentence even if released on parole.

MR SILBERT: Yes, your Honour. Then 24 provides ‑ ‑ ‑

FRENCH CJ: So that the supervisory regime then is that which operates under the parole legislation.

MR SILBERT: In conjunction with the parole legislation, yes, your Honour.

FRENCH CJ: No. If the extended supervisory order does not come into effect until the completion of the entire sentence, inclusive of parole, then presumably between the release from custody and commencement of such an order, all the relevant supervisory mechanisms are to be found, such as whatever they are, in legislation relating to offenders on parole.

MR SILBERT: Yes, your Honour, under the Corrections Act. Then Division 5 provides for the general procedure, including, it specifies, that the proceedings are criminal in nature and section 35 provides that a court must state reasons for its decision for any decision made under Part 2, which then goes to Part 3, providing for appeals to the Court of Appeal by an offender or by the Secretary to the Department of Justice and section 39 provides for powers of Court of Appeal. An example of such an appeal being seen in the decision of ARM v Secretary, Department of Justice, to which the Court has already been taken, where an appeal against an extended supervision order was refused, but a suppression order imposed by the Court of Appeal on that hearing.

FRENCH CJ: The appeal procedure only relates to the extended supervision orders or their renewal or non‑revocation.

MR SILBERT: Yes, your Honour. Part 4 provides for provisions for breach, and that really brings us to section 42, the critical provision with which your Honours are concerned. In relation to the construction of 42(1)(c), 42(1)(c) could be construed, it is submitted, in either one of two ways. The first, that any information that might enable an offender to be identified or another person who has appeared or given evidence in the proceeding to be identified, that is construction number one, and I think your Honours have floated that as one alternative. The second one being, that any information that might enable an offender in the proceeding or another person who has appeared or given evidence in the proceeding to be identified.

The informant would submit that the first alternative is the preferred alternative and is the meaning of the section because it is submitted, your Honours, that the second alternative – the construction floated by Justice Bell in the course of discussion with my learned friend, the narrower interpretation effectively emasculates the effect of the Act.

HAYNE J: The riposte that might be made is that the broader construction is devoid of content. What does it mean? I am looking at the form of suppression order made in ARM which is the last sheet in the bundle we have been given.

MR SILBERT: Yes, your Honour.

HAYNE J: The Court of Appeal ordered that there should be no publication of, amongst other things, any information that might enable the appellant to be identified.

MR SILBERT: Yes, your Honour.

HAYNE J: Now, what does that mean? Does it mean that no one can ever say that this person who owns Rusty, the dog that took the first prize in the Royal Show, is named John Henry Smith? Surely not. It must mean something more refined than that.

MR SILBERT: Yes, your Honour.

HAYNE J: Now, once you have taken that step that might enable the appellant to be identified, might enable the appellant qua appellant, to be identified, that is to say, might enable the person who was the subject of application for extended supervision order to be identified.

MR SILBERT: Yes, your Honour.

HAYNE J: Now, how does that preclude anyone saying, “20 years ago there was a series of serious sexual offences committed in a suburb of Melbourne by a person who was a vile predator who committed the following offences here described. That person, named John Henry Smith, was sentenced to 18 years imprisonment. That term of 18 years has now expired”.

MR SILBERT: Yes. Your Honour, that is the broader construction for which I contend and it is submitted that on the broader reading of section 42(1)(c), it picks up what had hitherto been completely unsuppressed and there is no doubt that the initial proceedings, the 20 years ago, were not subject to any suppression order, that they were published and that the results were fully available and subject to completely open justice, but that at the time that an order under 42 is made, that previous proceeding is picked up by the terms of the suppression order.

FRENCH CJ: Surely, something must turn on the word “identified”.

MR SILBERT: Yes, your Honour.

FRENCH CJ: When one says of someone that he identified another person one thinks of him saying “That person is Mr X”.

MR SILBERT: Yes.

FRENCH CJ: One can understand a suppression order within the framework of (c) saying, in effect, for example, you cannot state that the person who lived at such and such an address is Mr X.

MR SILBERT: Yes, your Honour.

FRENCH CJ: In other words, you cannot identify the offender by reference to that particular person.

MR SILBERT: Yes, your Honour.

FRENCH CJ: Now, if one reads identification in that way, a statement that somebody was convicted of an offence 20 years before and did terrible things and is now out on parole none of those things will identify this person as that.

MR SILBERT: Your Honour, there could be an identification qua the person subject of the extended supervision order. There could be identification qua as a sex offender and there could be identification at large. Clearly, to take up Justice Hayne’s point, it cannot preclude identification at large because there is no reference whatever ‑ ‑ ‑

FRENCH CJ: It is an absurdity.

MR SILBERT: It becomes an absurdity, but, in my submission, it does not become an absurdity qua a sex offender, because the whole purpose of the legislation is to deal with released sex offenders once they have served their sentence. So, in my submission, it is not absurd qua sex offender, and to construe it more narrowly qua the person subject of an extended supervision order, effectively emasculates the legislation because if it is so construed, it leaves it open to identify the person the subject of the extended supervision order as the person who 20 years ago committed some horrible sex crimes against children in a Melbourne suburb, and in that situation it seems to defeat the raison d’etre for the provision and the scheme of the Act.

BELL J: The provisions of subsection (3) creating the offence might bear some relevance in considering the construction. The offence is not expressed to involve the knowing publication in contravention of an order. That might suggest that there is a link between publishing the identity of a person in connection with the proceedings because one can know not to do that. It is a little more difficult to know not to re‑publish a book that discussed triumphs of the Victorian police in the 1960s and mentioned Mr Smith when incidentally Mr Smith is the subject of one of these orders and one does not know.

MR SILBERT: That takes it to the limit. I agree with your Honour to that extent, but the difficulty is the offender uses their name, does not change their name and continues using the name that they have been using throughout this period. In my submission, the policy of the Act is to put a clamp on the identification as from the time of the extended supervision order and from that time onwards, the identification of the person by their name is forbidden by the section because otherwise to continue to be able to identify that person as the person who 20 years ago committed some terrible sex offences, effectively identifies the person for the purposes of where they are living, it identifies them by their name and undermines the whole reason for the suppression order in the first place.

HAYNE J: But if that is so, that person cannot enrol on the electoral roll, I would have thought. You have got John Henry Smith, 123 Smith Street, Smithsville, and if the full name, that is publication of the full name is enough to tip you into forbidden territory, where are you?

MR SILBERT: I do not go that far, your Honour, I say, qua as a sex offender. So the limitation cuts off at the point that identifies the person as a sex offender. It does not cut in at the point that simply identifies the person. Obviously your Honour has to be right in relation to that. It affects the telephone directory, it affects the electoral role, it affects all sorts of things, but once it links in to being a sex offender, then, in my submission, it falls within the ambit of the section.

BELL J: How do you get that from the text of the section?

MR SILBERT: By reading that:

if satisfied that is in the public interest to do so, may order . . .
(c) that any information that might enable an offender –

Just stopping there, and then –

or another person who has appeared or given evidence in the proceeding to be identified –

So, in my submission, I get it from the section by saying that any information that might enable an offender – the word “offender” not being qualified by the words “or given evidence in the proceeding”.

BELL J: But what is an offender? “Eligible offender” is defined.

MR SILBERT: I will just perhaps refer your Honour to footnote 8 of the informant’s submissions on page 4 which effectively address that. But an offender is a person who has committed an offence. Perhaps I will refer your Honour to section 1 where it says:

The main purpose of this Act is to enhance the protection of the community by requiring offenders who have served custodial sentences –

So “offender” is someone who has served a custodial sentence.

BELL J: Yes, well, that is a very broad ‑ ‑ ‑

GUMMOW J: Then section 42(1) in both branches (a), (b) and (c) fixes upon what has been going on in the proceeding.

CRENNAN J: Which is logical because it would be very unusual to have a provision that information in the public domain for decades, say, is suddenly subject to a suppression order, whereas if you read this as Justice Gummow is suggesting, you are really talking about something which is not in the public domain, namely that this particular person has completed the sentence and is subject to an extended supervision order.

MR SILBERT: I agree with your Honour and with Justice Gummow. I am maintaining the submission that it does pick up the 20 year old, but if it becomes unusual and it becomes required to be qualified by “given evidence in the proceeding” then it clearly becomes an offender qua an offender in the proceeding. As I say, on a construction basis I do not know that I am defending the indefensible, but it is clearly unusual that 20‑year old proceedings that have not been subject to a suppression order get picked up by this provision on the date of the making of the order and thereafter become the subject of suppression order.

I have to agree with your Honour that is unusual, whether it is the meaning of the Act, my submission that it is. The alternative provision is that it – as Justice Gummow says – is qualified by offender qua proceeding. It is clearly one or the other; it is not an offender at large as postulated in argument by Justice Hayne, someone whose name goes on the electoral roll. It has to be an offender qua something that relates to either the proceeding or to the commission of an offence.

FRENCH CJ: I mean, offender qua proceeding, what does that tell us about the scope of the orders that can be made, the scope of the prohibition, in effect, that can be imposed by such an order?

MR SILBERT: Well, your Honour, if it is an offender qua proceeding, the order can take in under (a) any evidence that has been given in the proceeding and then under (b) the content of any report or other document put before the court in the proceeding. So it can pick up, in my submission, some of the material that has hitherto been unsuppressed.

FRENCH CJ: Well, it would pick up an order, looking at (c), that would prohibit publication of the fact that an offender named X had been the subject of this proceeding and/or of an ESO.

MR SILBERT: Yes. Yes, it would, and it may, in my submission, pick up more than that.

FRENCH CJ: What is the more and how do you justify it?

MR SILBERT: The more might be the evidence given in that particular proceeding, in the ESO proceeding.

FRENCH CJ: That is (a).

MR SILBERT: Yes, that is (a), and then the subject of (b) as well.

FRENCH CJ: Yes, so what I am asking for is, what more do you get out of (c) on the premise that it is the offender qua proceeding, what more do you get out of (c) than authority to prohibit publication of the fact that this offender was the subject of such proceedings and either had or did not have an order made?

MR SILBERT: If it is the offender qua proceeding, I do not think anything more could be got out of it, your Honour.

FRENCH CJ: All right. That would mean that the orders that were made in this case would go beyond the range of what was authorised.

MR SILBERT: Yes.

GUMMOW J: Another person who has appeared, I think you said to us, could be a victim, is that right?

MR SILBERT: Could be a victim. It could be any sort of witness, but primarily one would expect it to be a victim, yes. It would probably pick up the professional witness who has given evidence in relation to a report appeared and being cross-examined. I mean, these are quasi-criminal proceedings to an extent and they have the procedures of a criminal proceeding.

BELL J: It is odd to think of another person appearing as distinct from giving evidence, whereas it makes sense for the offender to be someone who appears in the proceedings. They are a party to the proceedings.

MR SILBERT: Well, if the victim, for example, was to appear and give evidence on an application or an extended supervision order, then that would, in my submission, encapsulate ‑ ‑ ‑

BELL J: The victim would not be appearing. The victim would be giving evidence, but the victim would not be a party.

MR SILBERT: Would not be a party, but would be appearing or giving evidence. They could be construed as appearing, in my submission, if they appeared on the proceeding and gave evidence.

HAYNE J: The order, for example, made by Judge Millane at 120 seems largely to follow the text of the statute, so whatever construction is given to the statute may have to be given to the order which shows the difficulties about ‑ ‑ ‑

MR SILBERT: The statute.

HAYNE J: ‑ ‑ ‑drafting orders.

MR SILBERT: And drafting statutes.

HAYNE J: Yes, and drafting orders.

MR SILBERT: It certainly follows the wording of the statute. I do not know whether the attempt to cast light on the construction of the statute has done that or obfuscated it, but I think probably there is nothing more that needs to be said. At least the dichotomy is thrown up as to ‑ ‑ ‑

GUMMOW J: The victim may simply appear and make oral submissions.

MR SILBERT: Yes, your Honour.

GUMMOW J: May not give evidence, just simply might appear, be allowed to appear.

MR SILBERT: Yes, he might. Your Honours, I am largely reliant on the written submissions. There are a few matters I do want to raise. We have included, I think in footnote 44 of our principal submissions, a reference to R v Ferguson; Ex parte Attorney-General (Qld) [2008] QCA 227 at [9], where President McMurdo and Justices of Appeal Keane and Muir quote from the trial judge in those proceedings, to the effect that:

There are reports in the press, including television coverage, which I can recall, of citizens who lived in close proximity to his residence after his release from prison and of their being outraged by the fact that he was living close to them.
There are reports of his being ‘forced’ to leave residences at Ipswich, Murgon and Roma after angry demonstrations by some. There are references in the material before me of the accused being ‘hounded’, of residents being ‘in uproar’, and of their ‘picketing’ his residence. There are references to an ‘angry mob’.

As I say, footnote 44 – a purpose, in our submission, of 42(1)(c), however construed, is to stop that sort of reaction and the method chosen is to prohibit the publication of information that would allow people to identify their next‑door neighbour as either someone who was subject of an extended supervision order or someone who was a sex offender, however the provision is construed.

It is submitted that it would not meet the purpose simply to prohibit publication that would allow people next door to realise that the person living next door is on an extended supervision order but not to prohibit publication of information that would allow them to realise that the person living next door is a particular sex offender. That might be the difficulty thrown up by the drafting. If the narrow construction is the one that is said to apply then that clearly is going to be the situation that pertains. Your Honour has referred before to the Charter of Human Rights and Responsibilities. I was hoping not to have to go near it.

HAYNE J: Your opponent obviously was of the same view.

MR SILBERT: He was, your Honour, and I am told next time that I am likely to appear here I am not allowed to be a contradictor in relation to the provisions of that. In relation to section 15, which deals with freedom of expression – 15(2) – I suppose the relevance of this, and I am treating it out of order, comes to the question of freedom of communication, freedom of political communication. There was no discussion about the implication arising from Lange insofar as one might arise from the Constitution of Victoria. I can stay away from that safely, I suppose, but leaving the Constitution of Victoria alone, there is a specific provision under section 15(2) providing for freedom of expression:

Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether –
(a)orally; or

and so it goes. But the significant section there is section 15(3), it is submitted:

Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary –
(a)to respect the rights and reputation of other persons; or

(b)for the protection of national security, public order, public health or public morality.

If we stay away from the question of where an implication comes out of the Constitution of Victoria, this is a statute of Victoria that specifically seems to provide for freedom of expression with a rider talking about lawful restrictions. I do not, as far as the question of Kable goes, want to traverse the Kable area other than dealing perhaps with the rights under the Charter in relation to the right to privacy. Section 13 talks about:

A person has the right –
(a)not to have his or her privacy, family, home, or correspondence unlawfully or arbitrarily interfered with ‑ ‑ ‑

GUMMOW J: Well, unlawfully begs the question, does it not?

MR SILBERT: Yes, it does. It does beg the question.

GUMMOW J: It begs the question in the sense that when one comes to apply section 32, the interpretation section, to section 42 you start going around in circles.

MR SILBERT: You do, your Honour, and it is a pleasure your Honour is going to have in February next year, I understand, in relation to interpreting ‑ ‑ ‑

GUMMOW J: We will survive that, but what is the answer here?

MR SILBERT: The answer here, although it is primarily directed towards the interference by the State, it may require positive steps by the State to prevent interference with a person’s privacy by other individuals, and there is reference to Nolan v MBF Investments Pty Ltd [2009] VSC 244 at paragraphs 162 to 165 per Justice Vickery which has reference to European jurisprudence. Now, the broader view would better give effect to the offender’s right to privacy.

Perhaps if I could just go back briefly to the question of Kable and if I can refer your Honours to Fardon (2004) 223 CLR 575, and again I do not need to take your Honours to the report, but referring to Justice McHugh in Fardon at page 601, his Honour at line 4 states that:

State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.

In the paragraph 42 his Honour Justice McHugh continues:

State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal ‑ ‑ ‑

GUMMOW J: I am not sure how well that stands up, now, after International Finance actually – that is in 240 CLR 319.

MR SILBERT: Yes. Simply then referring your Honours to ‑ ‑ ‑

GUMMOW J: I mean the width of some of those expressions in that passage.

MR SILBERT: Your Honour, just looking at the Kable points very briefly and referring your Honour to the informant’s submissions, we have outlined the submissions that the Court has a discretion to make the order. That is set out in paragraph 38, that the media can oppose the order and provide a contradictor at paragraph 39.

The powers of the Court are limited by the section and subject to appeal and review and they are set out at 40 and I will not take your Honours through them. There is no closed court, as has been remarked. It is limited to specified matters and non‑publication but the courts are open and free to anyone to walk in and to observe the proceedings, does not permit orders without reasons and the reasons are not suppressed and that is summarised in paragraph 42 of our submissions, that the County Court does not ascend the Mount Olympus to the apex of the judicial hierarchy and that is set out between 21 and 25 and that the question of public interest derives its content from the subject matter, the scope and the purposes of the Act. They are set out and summarised at paragraph 47.

GUMMOW J: What is the footing for paragraph 39, “Representatives of the media can oppose the making of an order”?

MR SILBERT: Paragraph 39 “Representatives of the media can oppose the making of an order and readily provide a contradictor.” That goes back with reference to paragraph 12, though not stated expressly in the Act. Representatives of the media can apply for leave to intervene in an application for an order under section 42(1). Ordinarily, as the order would directly bind them, they would be granted such leave. Indeed, I think reference has been made to the ‑ ‑ ‑

FRENCH CJ: You are relying upon a rule of the Court?

MR SILBERT: Yes, your Honour, and goes from the reference to 39. Indeed, the case of Chief Commissioner of Police (Vic) that has been referred to already, the contradictor in this Court was The Age newspaper. There is nothing to prevent the press providing a contradictor. Insofar as my friends assert that there is no contradictor and assert that the institutional integrity of the courts are compromised by the lack of a contradictor we take issue with that. As I say, the public interest is dealt with at 47 and if I could ‑ ‑ ‑

GUMMOW J: But they have to know about it.

MR SILBERT: They have to know about it. They have ways and means of knowing, your Honour. They seem to know from court lists. There never seems to be any shortage of press available and solicitors available to make applications in respect of these orders who gain knowledge from the daily court list.

BELL J: How does the court list appear? The Secretary of Justice is a party. Is there some form of anonymity for the respondent to the application or ‑ ‑ ‑

MR SILBERT: Your Honour, frequently, they are appearing with anonymised titles. Unfortunately, if your Honour looks through the Victorian reports you will see that every second case seems to have an anonymised title and cases coming through this Court also have anonymised titles. It seems to have become – my friend can refer to alphabet soup but the authorised law reports of the Australian States are starting to look very much like that because of the anonymised titles as well.

FRENCH CJ: But this an anonymised title in a court list prior to the making of any suppression order.

MR SILBERT: Yes, your Honour, prior to the making of a suppression order.

FRENCH CJ: So is that an administrative practice or ‑ ‑ ‑

MR SILBERT: It seems to be an administrative practice and it seems to alert the press to the fact that there will be an application for a suppression order.

FRENCH CJ: Be better off being listed as Smith than as XYZ.

MR SILBERT: Yes, it would. At 51, the Kable submissions are summed up in a submission that the orders empowered by 42(1) can be seen to be consistent with previously recognised inherent power of the court to make orders for the protection of those involved in proceedings before it. My friend spoke about the parens patriae jurisdiction. All of the authorities, ancient as they are, recognise the statutory power of parliaments to make further exceptions to the question of open justice.

Going back to the leveller, going back to Scott v Scott, there are always – in each of those cases there are statements of exception that it is within the power of Parliament to provide for exceptions to the open justice rule and, as Justice Bell has said, the question here is the legislative power of the Victorian Parliament to provide by statute for exceptions to the rule of open justice and, in my submission, using traditional categories that existed in 1913 are not necessarily very helpful given social conditions today.

My friend can talk about Mirabeau and Bentham and the author or authors of the Old Testament, but none of them, it is submitted, were speaking about sex crimes against children or had those at the forefront of their minds at the time of their pronouncements or political though, as those pronouncements were. So, in my submission, the Kable principle is not infringed and there is nothing in this legislation which affects the constitutional integrity of the Supreme Court of Victoria or the County Court of Victoria.

I do not know that there is anything further that I need to say in relation to that. It is conceded by my friend that a suppression order to protect the administration of justice – well, before lunch he conceded that section 18 of the Supreme Court Act (Vic) would not impair the constitutional integrity. I took him after lunch to resile slightly from that concession in relation to the provision of section 18 of the Supreme Court Act (Vic).

It is said that the public interest does impair the constitutional integrity, so effectively your Honours are looking at what the gap is between the administration of justice and the public interest. The question is what is the gap and what is the significance of that gap? It is submitted if there is a gap, and it is not conceded by the informant that there is a gap, but if there is a gap it does not destroy the institutional integrity of the Supreme Court of Victoria ‑ ‑ ‑

FRENCH CJ: Just looking for a moment at paragraph 47 of your submissions where you speak of the content of the term “public interest”, would the content of the discretion conferred by section 42 be any different if the words “if satisfied that is in the public interest to do so” were removed because it seems to me the subject matter, scope, and purpose of the provision is something which would inform a discretion described simply by the word “may”, on your submission.

MR SILBERT: If the words “if satisfied that is in the public interest to do so” were removed so it simply read “In any proceeding before a court under this Act, the court may order” ‑ ‑ ‑

FRENCH CJ: It would have to regard to the subject matter, scope and purpose of the provision, would it not?

MR SILBERT: Yes, it would, and in my submission, the presence of those words “if satisfied that is in the public interest to do so” directs the court to a number of things including open justice, and the question of open justice is ‑ ‑ ‑

FRENCH CJ: The court would need to think about that anyway, would it not?

MR SILBERT: Yes, it would. Whether it is superfluous or not, my submission is it emphasises the scope, content and purpose of the Act as giving content to the discretion that is being exercised.

Your Honours, the only matter I would like to finish, it relates to the question of whether section 42 unreasonably impedes the implied freedom of political communication. Applying the Lange test as amended in Coleman v Power, it seems to be taken that the law does effectively burden freedom of communication. There was a concession to that effect in Coleman v Power relating to the Queensland legislation. It is not necessarily conceded here that the first limb of the Lange test is satisfied, but my friend went on to address the appropriate and adaptive legitimate means to service it.

As I say, I do not concede that he gets over the first of the hurdles of the Lange test, but assuming he does, the answer appears in paragraph 66 of the informant’s submissions. The defendant’s submissions show, at most, only how any discussion restricted by s 42 may relate to a choice at state elections. The authorities of this Court do not support the view that, in all cases, discussion about state matters falls within the freedom. That must be so, because discussion of wholly discrete state issues cannot form part of the communication which enables electors to exercise free and informed choice at federal elections and maintains the system of responsible government at that level, to the extent mandated by the provisions of the Constitution from which the [implication] arises.

GUMMOW J: The problem is the phrase “wholly discrete”.

MR SILBERT: Yes, the matters identified, it is submitted, cannot infringe the freedom.

FRENCH CJ: It is a fuzzy boundary.

MR SILBERT: It is a fuzzy boundary, but in one sense ‑ ‑ ‑

FRENCH CJ: You just have to look at the COAG list.

MR SILBERT: It is a fuzzy boundary, your Honour, and if your Honour reads the Victorian case of Levy or Coleman v Power or any of the purely State cases without a federal component it is often difficult to see where the edges of the boundary are to be drawn. This Court said, I think, in Levy’s Case that it was not necessary to enter into the investigation as to whether an implication arose from the Constitution of Victoria. There is always, as in Coleman v Power, some link that might be called fuzzy or tenuous with federal jurisdiction identified in order to ground the implication. Quite where it comes in dealing with domestic sex offenders is another question.

Perhaps the only other matter that I need to deal with and I can conclude on is the question raised by Justice Hayne in APLA, the Australian Plaintiff Lawyers Association. At paragraph 68 of the informant’s submissions nothing in section 42 restricts political discussion about whether orders of the kind empowered by section 42 ought to be made or whether, on the contrary, material within its terms ought to be able to published.

That was raised very early on, I think, at the outset by Justice Crennan saying that there is nothing there that prevents a debate or a political debate about the efficacy or the nature of the Serious Sex Offenders Act, whether it should exist, whether it should be appealed or, indeed, running a campaign for its repeal. One does not need it to name sex offenders in order to enter upon such a campaign. The naming of the offenders is purely gratuitous and purely designed to attract more attention to it. If there is political debate that is legitimate in relation to that Act it can be run, quite legitimately, without the naming of sex offenders and within the confines of section 42, suppression order however construed.

FRENCH CJ: Thank you, Mr Silbert. We will not need to call on you right at the moment, Mr Solicitor. The Court will adjourn until 10.15 tomorrow morning.

AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 3 NOVEMBER 2010

Details

AGLC: Hogan v Hinch [2010] HCATrans 284
Case: [2010] HCATrans 284
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Hogan against a judgment of the Supreme Court of Victoria. The dispute concerned the publication of certain statements by Mr. Hinch, a media personality, concerning Mr. Hogan. Mr. Hogan alleged that these statements were defamatory.

The central legal issue before the High Court was whether the defence of qualified privilege was available to Mr. Hinch in relation to the defamatory statements he published about Mr. Hogan. This defence, if established, would negate the defamation claim. The Court was required to determine if the circumstances of the publication met the requirements for qualified privilege, particularly concerning the duty or interest to publish and the reciprocal duty or interest of the recipient to receive the information.

The High Court ultimately found that the defence of qualified privilege was not available to Mr. Hinch. The majority of the Court reasoned that while there might have been a public interest in discussing the matters raised, the manner and extent of Mr. Hinch's publications went beyond what was reasonably necessary to fulfil any duty or interest he might have had. The Court applied established principles of defamation law, focusing on the scope of the privilege and the need for the publication to be reasonably proportionate to the public interest served. The Court also considered the potential for the privilege to be defeated by malice, although this was not the primary basis for the decision.

The High Court allowed Mr. Hogan's appeal, setting aside the judgment of the Supreme Court of Victoria and remitting the matter for further consideration.

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Citations

Hogan v Hinch [2010] HCATrans 284

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Cases Citing This Decision

High Court Bulletin [2011] HCAB 1
Citation 1

…M105/2010: [2010] HCATrans 284; [2010] HCATrans 285.…
High Court Bulletin [2010] HCAB 12
Citation 2

…M105/2010: [2010] HCATrans 284 and [2010] HCATrans 285.…
High Court Bulletin [2010] HCAB 11
Citation 3

…M105/2010: [2010] HCATrans 284 and [2010] HCATrans 285.…

Cases Cited

Statutory Material Cited

Hogan v Australian Crime Commission [2010] HCA 21
Citation 1

…rs to that in due course. The only other case I needed to mention to your Honours on the constitutional aspect is Hogan v Australian Crime Commission (2010) 240 CLR 651. The only matter I wish to remind your Honours of in that case is the passage at paragraph 31 where, in the context of section 50 of the Federal Cour…
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49
Citation 2

…GUMMOW J: I am not sure how well that stands up, now, after International Finance actually – that is in 240 CLR 319.…
ARM v Secretary to the Department of Justice [2008] VSCA 266
Citation 3

…ter. There is a decision in a case called ARM v Secretary to the Department of Justice , giving the neutral citation which, I think, is the only one, [2008] VSCA 266, and in that case the court needed to consider the meaning of various words in this legislation and in the course of discussing the relevant factors,…
KF v Parramatta Children's Court & 3 Ors [2008] NSWSC 1131
Citation 4

…Honours to it, it is referred to in paragraph 29 of the informant’s submissions – there is a discussion in KF v Parramatta Children’s Court [2008] NSWSC 1131 by Justice Hidden of the meaning of “published” in a context of this sort, and the submission my learned friends make is that:…
R v Ferguson; ex parte [2008] QCA 227
Citation 5 (Para 9)

…do want to raise. We have included, I think in footnote 44 of our principal submissions, a reference to R v Ferguson; Ex parte Attorney-General (Qld) [2008] QCA 227 at [9], where President McMurdo and Justices of Appeal Keane and Muir quote from the trial judge in those proceedings, to the effect that:…
Fardon v Attorney-General for the State of Queensland [2006] QSC 5
Citation 6

…the subsequent cases in any detail, but it is worth noting that in Fardon , where Kable was distinguished, that is Fardon v Attorney‑General (QLD) (2004) 223 CLR 575, at page 614, where your Honour refers again to the “repugnancy doctrine” of Kable , and again at the bottom of the page to:…
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Citation 7

…those cases; I will just give your Honours the references. The two in New South Wales are John Fairfax & Sons Ltd v Police Tribunal (New South Wales) (1986) 5 NSWLR 465 at 476 to 477 and 481C and Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 and in Victoria, R v White (2007) 17 VR 308.…
North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31
Citation 8

…The next case I can deal with even more briefly – that is, the North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. In paragraph 29, at page 163 in the judgment of the plurality of six members of the Court, there was this passage in paragraph 29:…
Re Applications by Chief Commissioner of Police (Vic) for leave to appeal [2004] VSCA 3
Citation 9

…tely, but the point is that the test is put as being a very high test. Finally, the other case is Re Applications by the Chief Commissioner of Police (2004) 9 VR 275. In paragraph 29, this is a decision of this Court -– I am sorry, I think I have the wrong paragraph number.…
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24
Citation 10

…and the importance of open justice. The starting point of this jurisprudence is the decision of this Court in Kable v Director of Public Prosecutions 189 CLR 51. At page 115 of the report, Justice McHugh said this at point 7:…
Nationwide News Pty Ltd v Wills [1992] HCA 46
Citation 11

…o the first answer in relation to the courts is that it is not just the courts here, it is far broader matters of legislation and criminal policy. In Nationwide News Pty Ltd v Wills (1992) 107 CLR 1, this Court applied the freedom of political communication implication to communications criticising a quasi‑judicial body and it is fairly…
Russell v Russell [1976] HCA 23
Citation 12

…GUMMOW J: Is not what was said by Justice Gibbs in Russell v Russell 134 CLR 495 at 520, beginning at the paragraph, “It is the ordinary rule”, is that not against you? This is in a constitutional context too.…
Hinch v County Court of Victoria [2009] VSC 548
Citation 13

…s, your Honour, but I will have the section turned up. The case in which it was applied against us is the case of Hinch v County Court of Victoria in [2009] VSC 548. It is rule 56.02 of the Rules of the Supreme Court which imposes a time limit of 60 days. It is a rule of general application.…
Nolan v MBF Investments Pty Ltd [2009] VSC 244
Citation 14

…steps by the State to prevent interference with a person’s privacy by other individuals, and there is reference to Nolan v MBF Investments Pty Ltd [2009] VSC 244 at paragraphs 162 to 165 per Justice Vickery which has reference to European jurisprudence. Now, the broader view would better give effect to the offen…
Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1
Citation 15

…ne United States case in relation to this question of open justice and exceptions to it. The other English case is Re Guardian News and Media Limited [2010] UKSC 1. In that case Lord Rodger begins with these words ‑ ‑ ‑…

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