Last week, the Magistrates’ Court of Victoria found Derryn Hinch guilty of contravening suppression orders made under the Serious Sex Offenders Monitoring Act 2005.
It’s not really a shock that Hinch was found guilty. The court decided that the identities of certain sexual offenders should not be made public and issued suppression orders to that effect. Derryn Hinch disagreed with the court’s decisions, so published their names on his website and shouted their names at a rally. It seems almost perverse that the case took more than half a day.
It’s also not much of a shock that Hinch maintains that not only were his actions justified but that he had an obligation to contravene the suppression orders. After hearing the decision, Hinch clumsily opined: "People know you should have a right to know if some of the worst sex offenders in this country’s history are living in your neighbourhood, living next door to you or whatever".
The only real shock is that the magistrate didn’t say the legal equivalent of "Go directly to jail. Do not pass ‘Go’. Do not collect $200".
As much as it might annoy us or make us cringe, even the most heinous criminal has legal rights. This brute fact infuriates the miniature superhero inside nearly all of us who tells us that we should go and seek just outcomes. Our inner superhero lives in a world of black and white: bad guys should get punished and everything should be done to ensure that they get punished. Rules and procedure be damned. The inner superhero wants us to take matters into our own hands with the gnomic aphorism "Bad men prosper when good men do nothing". But we can’t listen to our inner superhero because, if we do, we go down the path of vigilantism and vendetta.
Hinch listened to his inner superhero when he unilaterally decided that the justice system had failed ordinary folk by not letting them know that paedophiles and sex fiends could be living next door. As a notorious attention-seeker craving relevance in our post-Scrabble society, Hinch could barely resist the siren-song of his inner superhero. A law unto himself, he deemed that the bad guys shouldn’t have their rights respected.
There might be some sympathy for the view that rapists and paedophiles ought to be publicly outed. As far as criminals go, rapists and paedophiles are the worst of the worst. Why shouldn’t we know who they are, where they live, and how far we’d need to throw a brick in order to smash their living-room window?
The question asks us to balance some weighty issues.
The people Hinch named were on extended post-custodial supervision orders. Section 15 of the Serious Sex Offenders Monitoring Act (now repealed) says that the purpose of an extended supervision order is to ensure that the community is adequately protected by monitoring offenders who are a serious danger to the community and to promote the rehabilitation, and the care and treatment, of the offender. The supervision balances the individual’s need to rehabilitate into society and society’s need to ensure it is protected against people who posed a not insignificant risk.
Chief Justice of the High Court, Robert French, said that the purpose of an extended supervision order is protective, not punitive. To facilitate the protective role, courts could suppress the identity of the offender, allowing people subject to an extended supervision order to lead otherwise normal lives, rehabilitating into society.
Hinch did not consider the need of the individual to rehabilitate. Although we might be unable to forgive rapists and paedophiles, society has enacted its punishment by sending them to prison. They served their time and, now, they should be able to move back into society remorseful and repentant. Publicly shaming during the rehabilitation process is to attempt to punish them further. The supervision orders were to protect society. The suppression orders were to protect the offenders. Hinch’s actions were mendacious.
Although privacy and restraint won out in the Hinch case battle, it’s clearly losing the war. In May, a British MP decided that the courts got it wrong when they granted a footballer an injunction to prevent the story of his affair from being published. Unlike Hinch, the MP was able to use parliamentary privilege to "correct" the atrocity of a court ordering privacy. Not that the MP revealed anything hitherto unknown; the identity of the footballer had already been leaked across Twitter. British Prime Minister David Cameron said that it wasn’t "fair on the newspapers if all the social media can report this and the newspapers can’t, so the law and the practice has got to catch up with how people consume media today". Instead of protecting the interests of newspaper barons, it’s galling that Cameron wasn’t more interested in how to protect people’s privacy.
Back in Australia, we had the thoroughly disconcerting story of the minor who published nude photographs of St Kilda football players and then alleged an AFL player manager had inappropriate relations with her. Although the media respected the privacy of the girl, Twitter didn’t afford her the same consideration.
If the justice system can’t protect the rights of people who — from a legal point of view, at least — are innocent, how can it protect the rights of offenders who rely on the State’s protection? Hinch might have lost his legal battle, but his belief that the public’s right to know trumps all other considerations has found a safe harbour in social media.
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