Whatever you might think of Derryn Hinch, he now faces the real possibility of being jailed for something he said.

And what did he say? Did he urge violence? Did he savagely defame someone? Did he tell people vaccination harms children and they shouldn’t do it, leading to the deaths of kids? Did he, to use the famous analogy, yell “fire” in a crowded theatre?

None of the above. He named two convicted criminals on his website and at a public meeting.

For all his faults, Hinch has been goading the law on free speech issues for a generation, and not just when it comes to naming pedophiles. In the early 1980s, no election was complete without Hinch trying to break the absurd blackout on broadcast media political coverage that started the Wednesday before the election. Eventually he singlehandedly embarrassed the politicians into getting rid of it.

Now he faces jail again. Jail, literally, for something he said. It’s an outrage.

This is why our legal system can properly be viewed as the source of an ongoing campaign against free speech, or at least free speech in its limited Australian form. And the Victorian legal system is the epicentre of these attacks.

Last year, a senior lawyer counted over 1200 suppression orders in that state. As Hinch says, they’re thrown around like confetti in Melbourne. And Victorian judges have been particularly aggressive in attacking the media. Last May a Victorian judge suppressed an entire edition of The Weekend Australian’s magazine. Of course, let us not forget that it was that brave advocate of free speech, The Australian, which got a court order suppressing a Victorian Office of Police Integrity report that dared to criticise the paper.

The Federal Court is Melbourne was where Andrew Bolt found himself having to defend some remarks about Aboriginality. Bolt’s remarks were disgusting and offensive, but no more than that and he shouldn’t have to defend them in litigation. The reason he had to do so was because of the provisions of the Racial Discrimination Act, under which other offenders of common sense and good taste like Friedrich Toben and Danny Nalliah have also, disgracefully, found themselves successfully prosecuted.

Thus has the basic idea that you can be dragged into court to defend your speech become an established part of the communications landscape of Australia — defend it not against the claim of defamation, or of inciting violence, or of causing actual harm, but against the claim of offensiveness.

We can blame politicians for the RDA, but judges and lawyers are the faithful handmaidens of such litigation-friendly legislation.

Victoria was also the jurisdiction responsible for the laughable suppression order on Underbelly. Once upon a time, court suppression orders on TV programs had real force. The program Blue Murder wasn’t shown for years in NSW out of a bizarre judicial obsession with protecting potential jurors from its pernicious influence.

Now, the internet is here and makes a mockery of suppression orders, like it makes a mockery of so many other attempts to prevent people communicating with one another. Underbelly was downloaded by Victorians in their thousands after a court ruled it couldn’t be broadcast in Victoria.

Lawyers and judges are reacting to the internet with the same furious, ban-at-all-costs approach of movie and music execs and retailers. Several weeks ago, a Federal Court judge, Derek Price, ordered Fairfax to remove from the internet stories involving the murder of Terry Falconer, on the basis that it might sway jurors in the trial of one Anthony Perish.

As Fairfax’s Tim Dick noted, this approach is based on mistrust of jurors. It’s worse, really. The criminal justice system infantilises jurors, treating them as fragile minds who can’t be contaminated with a single unapproved piece of evidence without ruining a trial. It’s a classic gatekeeper con, perpetrated in this case by lawyers who administer the law, defend and prosecute within its administration and, given the large number of lawyers in parliament, tend to make it as well.

But Price’s censorship was particularly outrageous not merely for its condescension toward jurors, but because of the extraordinary stupidity of the ruling. The whole sordid saga involving Perish, Falconer and Sean Waygood is still easily obtainable despite Fairfax having removed the articles and even having had them removed from Google’s cache.

Maybe some enterprising lawyer can copy the tactics of the music industry and model how much damage the internet does to the administration of justice.

Still, none of that is quite the outrage that the possible jailing of Hinch is. Conjure all the legal reasoning you like about why he broke the law, the fact is he faces imprisonment for his words. It says far more about our insouciance toward the legal system’s regular assaults on what little free speech we’re permitted than it does about Hinch himself.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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