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Published online by Cambridge University Press: 24 January 2025
The detention of David Hicks by the United States in Guantánamo Bay detention camp was an event which attracted significant attention in the Australian community. By the time Mr Hicks’ detention in that facility ended in early 2007, newspapers and other media were reporting it daily, the voice of dissatisfaction among human rights organisations and the broader community was becoming insistent, and politicians were beginning to act. And the lawyers, of course, were far from silent.
Since Mr Hicks pleaded guilty to the charge of ‘providing material support for terrorism', was repatriated from Guantánamo Bay to Yatala prison in Adelaide, and served out that portion of his sentence which was not suspended, the public debate surrounding his detention and treatment has died down. Some legal issues which the affair threw up, however, remain unresolved. One such issue is whether or not Mr Hicks can publicise his story for profit. Determining this issue requires analysis of Australian proceeds of crime legislation, and consideration of the circumstances in which it would prevent Mr Hicks profiting from publication of his story. It is this task which this paper takes up.
In 2007, Lucas was Associate to the Hon Justice Tamberlin when his Honour decided Hicks v Ruddock (2007) 156 FCR 574. All opinions and errors are exclusively those of the author.
1 The background to Mr Hicks’ detention has been recounted before. A fuller account of the proceedings against Mr Hicks at Guantánamo Bay is in Timothy, McCormack, ‘David Hicks and the Charade of Guantánamo Bay’ (2007) 8 Melbourne Journal of International Law 273Google Scholar. A general background to the affair, and of Mr Hicks’ application before the Federal Court of Australia, is in JusticeBrian, Tamberlin and Lucas, Bastin, ‘David Hicks in the Australian Courts: Past and Future Legal Issues’ (2008) 82 Australian Law Journal 774, 775–80Google Scholar.
2 See McCormack, above n 1; SirAnthony, Mason and Geoffrey, Lindell, ‘Detainee 002: The Case of David Hicks by Leigh Sales’ (2008) 9 Melbourne Journal of International Law 515Google Scholar; Lex Lasry, The United States v David Matthew Hicks: Final Report of the Independent Observer for the Law Council of Australia, Guantanamo Bay, Cuba (20 June 2007) Law Council of Australia Report <http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=CDF9FC6F-1E4F-17FA-D252-457B6909B05A&siteName=lca> at 12 August 2009; the Hon Alastair Nicholson et al, David Hicks, Military Commissions Act 2006 — Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law (2006) Australian Human Rights Centre <http://www.ahrcentre.org/content/Activites/news.html> at 6 March 2009; Devika, Hovell and Grant, Niemann, ‘In the Matter of David Hicks: A Case for the Australian Courts?’ (2005) 16 Public Law Review 116Google Scholar; Marley, Zelinka, ‘Hicks v Ruddock versus The United States v Hicks’ (2007) 29 Sydney Law Review 527Google Scholar; Tamberlin and Bastin, above n 1.
3 Charge Sheet, Office of the Chief Prosecutor and Office of Military Commission, Department of Defense (2 February 2007), <http://www.defenselink.mil/news/d2007Hicks%20-%20Notification%20of%20Sworn%20Charges.pdf> at 12 August 2009, 1, 7.
4 The introduction of a non-conviction based regime is a novelty in the federal legislation, which was recommended by the Australian Law Reform Commission after its review of proceeds of crime legislation (which included a consideration of the use of non-conviction based regimes in certain Australian States before the new federal Act): Australian Law Reform Commission, Confiscation That Counts: A Review of the Proceeds of Crime Act 1987, Report No 87 (1999).
5 See ss 18–20 in relation to restraining orders, which provide the basis for ss 47 and 49 in relation to forfeiture orders.
6 The Act expressly provides that a literary proceeds order can be made in conjunction with the other types of confiscation orders (s 152(4)). Indeed, the only case which has to date dealt with literary proceeds was a case in which a restraining order was sought pursuant to s 20 of the Act as a step precedent to the making of a literary proceeds order for confiscation of the property: Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282.
7 Proceeds of Crime Act 2002 (Cth) s 153(2).
8 Proceeds of Crime Act 2002 (Cth) s 338.
9 Crimes Act 1914 (Cth) s 4G.
10 Proceeds of Crime Act 2002 (Cth) s 337A.
11 Proceeds of Crime Act 2002 (Cth) s 153(3)-(3A).
12 Cf Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282, 285.
13 Proceeds of Crime Act 2002 (Cth) s 153(4).
14 Proceeds of Crime Act 2002 (Cth) s 337(2), (4).
15 Proceeds of Crime Act 2002 (Cth) s 337(1).
16 Proceeds of Crime Act 2002 (Cth) s 337(5).
17 See ss 17–20 in relation to restraining orders, and ss 47–9 in relation to forfeiture orders.
18 Notably, the power to make literary proceeds orders is expressly not retrospective. Section 152(3) provides that ‘the literary proceeds must have been derived after the commencement of this Act.’ This is distinct from how the Act otherwise applies retrospectively to offences committed before commencement (s 14). It is also noteworthy that a literary proceeds order can cover future benefits (s 178).
19 Circumstances which the court under s 154(a) must take into consideration are (i) the nature and purpose of the product or activity from which the literary proceeds were derived; (ii) whether supplying the product or carrying out the activity was in the public interest; (iii) the social, cultural or educational value of the product or activity; (iv) the seriousness of the offence to which the product or activity relates; and (v) how long ago the offence was committed. Under s 154(b), the court may also take into account such other matters as it thinks fit.
20 See Proceeds of Crime Act 2002 (Cth) s 154(b).
21 Accordingly, references in this paper to s 152(1) of the Act should be read interchangeably with s 152(2).
22 See above, text accompanying n 4.
23 The question of law in the subsection, namely, whether the offence allegedly committed was an ‘indictable’ offence, is dealt with in s 338 of the Act, although one can imagine circumstances in which even this question would be vexed and s 338 of no assistance. The exposure of such a lacuna is made more likely by the new development in the Act whereby the person against whom the order may be made need not yet be charged, thus leaving it to the court, prior to the laying of a charge of rendering of a conviction, to decide whether the offence with which they may be charged is an ‘indictable’ offence or not. This lacuna may encourage an overestimation by the Director of Public Prosecution of the likely charges.
24 This manifestation of anomaly is exacerbated by s 157 of the Act, discussed above.
25 Of course, if the judge, for whatever reason, be it a resistance of predetermination or having been genuinely persuaded on the weight of evidence, makes a finding of fact in conflict with the jury's prior conclusion, then the second disquieting dimension of Parliament's choice of standard in s 154(1)(b) — anomaly — returns.
26 Although, s 91 of the Evidence Act 1995 (Cth) would present some obstacles here. Section 91(1) provides that ‘Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.’ While this provision prevents a previous judgment from being admitted to prove the existence of a fact which was a fact in issue in that proceeding, the provision does not prevent evidence of a previous conviction being adduced for some other relevant and admissible purpose: Ainsworth v Burden [2005] NSWCA 174, [107]–[109] (Hunt AJA). The party applying for the literary proceeds order would likely argue that evidence of a previous conviction was not adduced to prove the existence of any fact on which that conviction was based, but rather adduced only as evidence that the conviction had indeed been rendered, and that the standard in s 152(1)(b) is satisfied.
27 Proceeds of Crime Act 2002 (Cth) ss 158-61.
28 Proceeds of Crime Act 2002 (Cth) ss 162-6.
29 Proceeds of Crime Act 2002 (Cth) ss 167-71, 179.
30 Proceeds of Crime Act 2002 (Cth) ss 172-7.
31 See Confiscation of Criminal Assets Act 2003 (ACT); Confiscation of Proceeds of Crime Act 1989 (NSW); Criminal Property Forfeiture Act 2002 (NT); Criminal Proceeds Confiscation Act 2002 (Qld); Crime (Confiscation of Profits) Act 1993 (TAS); Criminal Assets Confiscation Act 2005 (SA); Confiscation Act 1997 (Vic); and Criminal Property Confiscation Act 2000 (WA).
32 See ss 80, 81 and 83 of the Confiscation of Criminal Assets Act 2003 (ACT); ss 200–211 of the Criminal Proceeds Confiscation Act 2002 (Qld); and ss 110–117 of the Criminal Assets Confiscation Act 2005 (SA). Arguably, the ‘unexplained wealth declaration’ provisions in ss 67–72 of the Criminal Property Forfeiture Act (NT) may perform similar functions to literary proceeds orders.
33 Criminal Proceeds Confiscation Act 2002 (Qld) ss 21, 101.
34 Criminal Proceeds Confiscation Act 2002 (Qld) s 203.
35 Cf Criminal Proceeds Confiscation Act 2002 (Qld) ss 21, 101.
36 Criminal Proceeds Confiscation Act 2002 (Qld) s 200.
37 The likelihood of deriving benefits by gratuitous gift or conditional gift promise (see Australian Woollen Mills v Commonwealth (1954) 92 CLR 424) is remote.
38 Confiscation of Criminal Assets Act 2003 (ACT) s 81(2).
39 Confiscation of Criminal Assets Act 2003 (ACT) s 81(4).
40 Confiscation of Criminal Assets Act 2003 (ACT) s 83(2).
41 The explanatory memorandum to the Territory Act, when it was a Bill before Parliament, does not clarify things: ‘[Section] 79 explains that … the concept of “commission” when used in the context of a serious offence, includes the alleged commission of the serious offence. The purpose of this [section] is to remove any doubt that penalty orders can be made for a serious offence even where the relevant offender has not been convicted of that offence, or the precise date on which the offence occurred cannot be determined.'
42 The federal Act is also simpler in its expression of the procedure by which the order is obtained. In s 162, it simply states that ‘[t]he DPP may apply for a literary proceeds order', thus avoiding the ambiguity introduced by s 79 of the Territory Act when it refers to ‘the alleged commission of the offence'.
43 Criminal Assets Confiscation Act 2005 (SA) s 111(5).
44 See Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282, discussed below, and s 26(4) of the federal Act.
45 Criminal Assets Confiscation Act 2005 (SA) s 3.
46 Criminal Assets Confiscation Act 2005 (SA) s 10.
47 548 US 557 (2006).
48 No challenge to the constitutionality of the military commissions as presently constituted has yet been brought before the United States Supreme Court. However, on 17 July 2008, Justice Robertson of the United States District Court for the District of Columbia refused the injunctive relief sought by Salim Hamdan to prevent the reconstituted military commissions from exercising jurisdiction: Hamdan v Gates, 565 F Supp 2d 130 (DDC 2008).
49 Section 337A of the Proceeds of Crime Act 2002 (Cth), inserted by Item 26 of Schedule 1 to Anti-Terrorism Act 2004 (Cth).
50 Monica Biddington, Selling Your Story — Literary Proceeds Orders under the Commonwealth Proceeds of Crime Act 2002 (2008) Australian Parliamentary Library <http://www.aph.gov.au/library/pubs/rp/2007-08/08rp27.pdf> at 6 March 2009.
51 Not least because the redrafting of that definition was intended to cover his particular circumstances — or as the explanatory memorandum to the Bill which became the Anti-Terrorism Act 2004 (Cth) euphemises, the redrafting was intended to cover ‘[s]ome who are alleged to have committed terrorist related offences [which] may be dealt with by a US military commission’ (Explanatory Memorandum, Anti-Terrorism Bill 2004 (Cth) 3).
52 (2007) 170 A Crim R 282.
53 On 24 March 2009, the Director of Public Prosecutions obtained an order that allowed confiscation of some but not all of the literary proceeds derived by Ms Corby. Notably, the orders also allowed for seizure of future payments. It is not clear pursuant to which power the orders were made. See: ‘Corby Keeps Most of Book Funds, The Sydney Morning Herald (Sydney) 8 April 2009.
54 See Proceeds of Crime Act 2002 (Cth) s 38.
55 Proceeds of Crime Act 2002 (Cth) s 20.
56 Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282, 283 (Keane JA).
57 Ibid.
58 See Anton Piller KG v Manufacturing Processes Limited [1976] Ch 55. Consider also, in the context of ‘freezing’ assets, Mareva injunctions: Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509.
59 Official Solicitor to the Supreme Court v K [1965] AC 201, 238 (Lord Devlin).
60 See, in Australia and overseas, McGrath & Anor re HIH Insurance Ltd & Ors [2005] NSWSC 731 (applications by liquidators for approval of agreements); Official Solicitor to the Supreme Court v K [1965] AC 201, 238 (wardship proceedings, United Kingdom); Attorney-General of Nova Scotia v MacIntyre (1982) 65 CCC (2d) 129, 146–147 (application for search warrants, Canada); R v Tarnopolski [1970] 2 OR 672, 680 (Ont CA) (tribunal proceedings, Canada); Prosecutor v Furundžija (Decision on Prosecutor's Motion Requesting Protective Measures for Witnesses ‘A’ and ‘D’ at Trial) Case IT-95-1-17/T (11 June 1998), 3–4 (violations of international humanitarian law, ICTY); s 34 of the Judicial Separation and Family Law Reform Act 1989 (Ire) (proceedings for separation of child and parent, Ireland).
61 [1995] 2 Qd R 10.
62 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, 44–5.
63 Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282, 285 (Keane JA).
64 See Esquire Nominees Ltd v Federal Commissioner of Taxation (1973) 129 CLR 177; Union-Fidelity Trustee Co of Australia Ltd v Federal Commissioner of Taxation (1969) 119 CLR 177.
65 Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282, 285 (Keane JA).
66 Biddington, above n 50.
67 See Vernon-Carus Australia Pty Ltd v Collector of Customs [1995] FCA 1283, [30].
68 See Prior v Sherwood (1906) 3 CLR 1054 (Barton J); Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 (Starke J); R v Regos & Morgan (1947) 74 CLR 613 (Latham CJ); R v Edmundson (1859) 28 LJMC 213, 215.
69 (1964) 109 CLR 395.
70 Ibid 402. Although Menzies J reached a different conclusion to Kitto J in the case, his Honour's statement of principle on this point at 405 is more succinct but materially the same.
71 Proceeds of Crime Act 2002 (Cth) s 338.
72 Proceeds of Crime Act 2002 (Cth) s 337(6).
73 YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, 404 (Kitto J), 405 (Menzies J).
74 Proceeds of Crime Act 2002 (Cth) s 338.
75 YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, 404 (Kitto J); Proceeds of Crime Act 2002 (Cth) ss 336, 337A
76 Explanatory Memorandum, Anti-Terrorism Bill 2004 (Cth) 11.
77 Proceeds of Crime Act 2002 (Cth) s 337(6).
78 Proceeds of Crime Act 2002 (Cth) s 152(2)(b).
79 It is important to recall that it is only the federal Act which retains this anachronism. If Mr Hicks were to derive literary proceeds in South Australia, the argument that he has not committed a ‘foreign indictable offence’ for the purposes of the South Australian legislation would not succeed, because that legislation has been specifically modified to include the military commissions as presently constituted in its definition equivalent to s 337A. The South Australia legislation is, however, easily avoided if Mr Hicks derives the literary proceeds in any other Australian State or Territory.
80 See Ricardo v Barcias (1845) 12 Cl & F 368; Goddard v Gray (1870) LR 6 QB 139, 150 (Blackburn J).
81 Yang v S & L Consulting [2009] NSWSC 223 (enforcement of Chinese arbitral award deemed not contrary); de Santis v Russo [2002] Qd R 230, 233 (McPherson JA) (Italian child support laws deemed not contrary); Re Macartney [1921] 1 Ch 522 (Maltese court's perpetual maintenance order deemed contrary); Boardwalk Regency Corporation v Malouf (1992) 6 OR (3d) 737 (gaming contracts deemed not contrary); Israel Discount Bank of New York v Hadjipateras [1983] 3 All ER 129; cf Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) s 9.
82 Boele v Norsemeter Holding AS [2002] NSWCA 36, [24] (Giles JA) (no notice of appeal hearing); Adams v Cape Industries Plc [1990] Ch 433 (fixing damages without evidence); Peter, Nygh and Martin, Davies, Conflict of Laws in Australia (7th ed, 2002) 194Google Scholar.
83 Nicholson et al, above n 2.
84 Proceeds of Crime Act 2002 (Cth) s 317(1).
85 There are some situations where the person who actually committed the offence need not be the person in respect of whom the order is sought, namely, where an accomplice is involved (s 153(1)(b)), where another person is requested or directed to publicise the story (s 336), and, apparently, where another person acts as agent for the alleged offender. This last situation (which may simply be a variant on the second) is not expressly provided for in the Act, but is one of the effects of the Court of Appeal's interpretation of the Act in Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282. Although the Court of Appeal made orders in relation to certain family members of Ms Corby who were deemed to be her agents in relation to the publication of her story of notoriety, Keane JA did not state the statutory or other basis on which the power of a court to make such an order rests.
86 Proceeds of Crime Act 2002 (Cth) s 153(4)(d).
87 Proceeds of Crime Act 2002 (Cth) s 153(4)(c).
88 Proceeds of Crime Act 2002 (Cth) s 153(4)(c)-(d).
89 Proceeds of Crime Act 2002 (Cth) s 337(1).
90 Proceeds of Crime Act 2002 (Cth) s 337(2).
91 Proceeds of Crime Act 2002 (Cth) s 337(4).
92 Proceeds of Crime Act 2002 (Cth) s 337(5).
93 Proceeds of Crime Act 2002 (Cth) s 337(5)(c).
94 Proceeds of Crime Act 2002 (Cth) s 317(2).
95 Proceeds of Crime Act 2002 (Cth) s 337(1).
96 Proceeds of Crime Act 2002 (Cth) s 337(5).
97 Such a situation might also make it likely that a court could not find that any literary proceeds had been ‘derived’ for the purposes of the Act, which states that either the person who allegedly committed the offence or someone ‘at the request or direction’ of that person must have ‘directly or indirectly’ received the benefits (s 336). On the meaning of this definition, see Director of Public Prosecutions (Cth) v Mylecharane (2007) 177 A Crim R 486, 494-5.
98 This conclusion is supported by the absence of any literary proceeds order against Kathryn Bonella, the co-author of Ms Corby's publication of her story of notoriety, in Director of Public Prosecutions (Cth) v Corby (2007) 170 A Crim R 282.