David Hicks and Australian Proceeds of Crime Legislation: Can He Sell His Story?

Date01 June 2009
DOI10.22145/flr.37.2.6
Publication Date01 June 2009
AuthorLucas Bastin
SubjectArticle
DAVID HICKS AND AUSTRALIAN PROCEEDS OF CRIME
LEGISLATION: CAN HE SELL HIS STORY?
Lucas Bastin*
INTRODUCTION
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.1 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.2
Since Mr Hicks pleaded guilty to the charge of 'providing material support for
terrorism',3 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
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* Magdalen College, Oxford. BA(Hons) (Syd); LLB(Hons) (Syd); BCL(Dist) (Oxon). 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 273. A
general background to the affair, and of Mr Hicks' application before the Federal Court of
Australia, is in Justice Brian Tamberlin and Lucas Bastin, 'David Hicks in the Australian
Courts: Past and Future Legal Issues' (2008) 82 Australian Law Journal 774, 775–80.
2 See McCormack, above n 1; Sir Anthony Mason and Geoffrey Lindell, 'Detainee 002: The
Case of David Hicks by Leigh Sales' (2008) 9 Melbourne Journal of International Law 515; 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
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 116; Marley
Zelinka, 'Hicks v Ruddock versus The United States v Hicks' (2007) 29 Sydney Law Review
527; 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.
314 Federal Law Review Volume 37
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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.
THE LEGISLATION — EXPLANATION AND CRITIQUE
Proceeds of crime legislation has been enacted by all federal, State and Territory
Parliaments. At the federal level, the most important enactment is the Proceeds of Crime
Act 2002 (Cth), which commenced on 1 January 2003, and substantially augmented the
Proceeds of Crime Act 1987 (Cth). For the purpose of this paper, the most important
changes implemented by the more recent Act are the introduction of provisions that
enable confiscation of proceeds of crime without the need first to obtain a criminal
conviction or charge; the inclusion of the crime of terrorism in respect of which
restraining and confiscation orders can be made; and the introduction of a new process
by which confiscation can be ordered, known as the 'literary proceeds order'.
Chapter two of the Act sets out five processes relating to confiscation. The first four
relate to the classic restraining, forfeiture and pecuniary penalty orders, and empower
the courts in relevant circumstances to order that a person not dispose of or deal with
property deemed to be proceeds of crime, that he or she forfeit that property to the
Commonwealth, or that he or she pay a certain amount of money calculated by
reference to the benefits derived from the commission of an offence. One new quality
which is introduced by the more recent Act is that restraining and forfeiture orders can
now be made without first obtaining a criminal conviction or charge against the
relevant person;4 instead, if there are 'reasonable grounds to suspect' that the person
has committed the relevant offence, then the court must make the order.5
Another new quality which the Act introduces into the proceeds of crime regime is
a fifth confiscation process, the literary proceeds order.6 'Literary proceeds' are defined
in s 153(1) of the Act:
(1) Literary proceeds are any benefit that a person derives from the commercial
exploitation of:
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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.
2009 David Hicks and Australian Proceeds of Crime Legislation 315
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(a) the person's notoriety resulting, directly or indirectly, from the person
committing an indictable offence or a foreign indictable offence; or
(b) the notoriety of another person, involved in the commission of that
offence, resulting from the first-mentioned person committing that offence.
The Act expressly provides that any means of 'commercial exploitation' of one's
notoriety can be the subject of a literary proceeds order, including but not limited to
publishing material in written or electronic form, using media from which visual
images, words or sounds can be produced, or providing live entertainment,
representations or interviews.7 An offence is an 'indictable offence' if it is possible for a
court to deal with the offence as an indictable offence, even if the same offence could
also be dealt with summarily in some circumstances.8 This includes, at the federal
level, offences which are punishable by imprisonment for a period exceeding 12
months.9 Similarly, an offence is a 'foreign indictable offence' for present purposes if it
involved conduct overseas which, had it occurred in Australia at the time of the
application for the literary proceeds order, would have constituted an offence against a
law of the Commonwealth, a State or a Territory punishable by at least 12 months
imprisonment.10 An important distinction between these two types of offences is that a
literary proceeds order can be made in relation to an indictable offence irrespective of
whether the benefit is derived in Australia or overseas, while such an order can only be
made in relation to a foreign indictable offence if the benefit is derived in, or is
transferred to, Australia.11 In this limited respect, the provisions dealing with
confiscation of literary proceeds have extraterritorial effect. While it is probably an
error in perspective to say that the Act is not concerned with where the relevant
commercial exploitation took place,12 it is correct to say that the Act is far from
toothless in respect of offences committed overseas.
A complicated question which arises under the Act is when a person can be said to
have derived literary proceeds. In deciding this question, the court may treat as
property of the person any property which it believes is either subject to his or her
'effective control' or has been transferred to another person at his or her direction.13
The term 'effective control' is defined in s 337 of the Act, but the definition is complex
and not entirely satisfactory. The definition is intended to be broad, encompassing
more than it excludes, but it achieves this result by enumerating certain scenarios
which are said to place the property in the person's effective control,14 certain
scenarios which are expressly said not to preclude a finding of effective control,15 and
finally a list of considerations which may assist the court in determining the
question.16 At no stage does the provision define, as a dictionary might, the term
which is at its core. As this paper discusses below, this ambiguity may mean that there
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7 Proceeds of Crime Act 2002 (Cth) s 153(2).
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).
316 Federal Law Review Volume 37
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are some circumstances in which it would not be appropriate for a court to make a
literary proceeds order, despite a story like Mr Hicks' having been publicised for profit.
The power to make a literary proceeds order is conferred by s 152(1) and (2) of the
Act, and unlike the powers conferred in relation to restraining and forfeiting
property,17 it is a discretionary power which the court can refuse to exercise even
when the conditions precedent in ss 152(1)(a)-(c) or 152(2)(a)-(c) have been satisfied.18
The fact that Parliament has seen fit to retain this ultimate discretion in relation to
literary proceeds orders rather than follow the common formulation of the power used
in relation to restraining and forfeiting property suggests that the discretion is not
empty, and that some factor additional to the conditions precedent must be present
before the order is made. What this additional factor might be will depend on the
circumstances of the case before the court,19 and may conceivably be no more than the
mere absence of any mitigating considerations.20 That being said, if the conditions
precedent are all clearly satisfied in a given case, it would be difficult for a court to
justify, other than in unusual circumstances, not exercising its discretion to make the
order.
The three conditions precedent in s 152(1) are (a) that the Director of Public
Prosecutions applies for the order; (b) that the court is satisfied that the person has
committed an indictable offence (whether or not he or she has been convicted of it);
and (c) that the court is satisfied that the person has derived literary proceeds in
relation to the offence. Section 152(2) establishes the same three conditions precedent in
respect of foreign indictable offences, mutatis mutandis.21 These are cumulative
requirements, all of which must be fulfilled before the court's discretion to make the
order arises. As the first is procedural and requires no elaboration, and the difficulties
arising in relation to the third have been discussed above, it is the second condition
precedent which deserves attention.
As has been mentioned, a significant development in the more recent Act is that it
provides for the making of restraining and confiscation orders without the need first to
obtain a criminal conviction or charge.22 That recalibration is achieved in relation to
literary proceeds orders by s 152(1)(b), and by the provision in s 157 that '[t]he fact that
a person has been acquitted of an offence with which the person has been charged does
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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.
2009 David Hicks and Australian Proceeds of Crime Legislation 317
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not affect the court's power to make a literary proceeds order in relation to the offence.'
While the provisions pertaining to literary proceeds orders are silent as to the
incidence and standard of proof which apply when determining the question of fact in
s 152(1)(b),23 s 317 of the Act lays the incidence with the applicant for any order under
the Act (so, in relation to literary proceeds orders, the Director of Public Prosecutions),
and sets the standard for 'any question of fact to be decided by a court on an
application under this Act … [as] the balance of probabilities'. As a matter of law, this
is not difficult to understand or apply. If a judge thinks it more likely than not that
someone has committed a crime, then s 152(1)(b) is satisfied. Arguably, given that a
majority of the questions of fact which federal judges encounter are determinable on
the balance of probabilities, using this standard is prudent. However, as a matter of
policy, there are several dimensions to the selection of the balance of probabilities
standard which are disquieting. The first is that s 152(1) still requires the court to make
a finding of fact about a person's culpability without satisfying itself that such a
finding is beyond reasonable doubt. While a literary proceeds order is not a
determination of criminal guilt which entails criminal sanctions, it is still a
determination of culpability to which a significant penalty attaches. Given the
conceptual if not functional similarity of the two determinations, it is surprising that
different standards of proof are used for each. Secondly, s 152(1) runs the risk of
anomaly. Anomaly may arise in two ways. It may arise because the judge under
s 152(1)(b) finds on the balance of probabilities that the person committed the crime
but at trial a jury is unable to reach the same conclusion beyond reasonable doubt.24
Alternatively — and this may fairly be described as the worst case scenario — anomaly
may arise because the judge finds on the lesser standard that the person did not
commit the crime, but the jury convicts the same person of the same crime while
applying the higher standard. The third disquieting dimension of the balance of
probabilities standard in s 152(1) is that, in some cases, it may be troubling when
anomaly does not arise. Where a person is convicted by a jury of an offence, and
subsequently a literary proceeds order is sought, the judge may be or may appear to be
so constrained by the jury's prior finding of fact about the person's guilt that he or she
cannot but make the same finding of fact under s 152(1)(b). Should the judge make
such a finding, it may smack of predetermination.25 This risk is made more acute by
the likelihood of the party applying for the literary proceeds order seeking to adduce
evidence of the person's prior conviction.26 Accordingly, although the foundation for
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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
318 Federal Law Review Volume 37
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the making of literary proceeds orders may appear to be logical as a matter of law, all
of these dimensions of the Act's choice of standard together have a cumulative effect
which, as a matter of policy, may undermine the integrity of a criminal justice system
which insists on attributing criminal culpability to an individual only when sure,
beyond reasonable doubt, that he or she has committed the crime charged.
The Act has several more provisions which are relevant to literary proceeds orders.
However, unlike those discussed above which govern the making of such orders, these
additional provisions concern the quantum confiscated under the literary proceeds
order,27 and the procedure by which such orders are obtained,28 enforced,29 and
discharged or confirmed.30 While these are all important aspects of this new process of
confiscation, they only become relevant after determination of whether the person has
derived literary proceeds at all and if so whether to confiscate them, which is the focus
of this paper. These additional provisions are therefore not considered in detail.
Instead, attention is directed to legislation at the State and Territory level which
restricts the publication of stories of notoriety for profit.
The relationship between federal legislation and State and Territory legislation is
straightforward. Section 15 of the Proceeds of Crime Act 2002 (Cth) provides that '[i]t is
the intention of the Parliament that this Act is not to apply to the exclusion of a law of a
State or Territory to the extent that the law is capable of operating concurrently with
this Act'. Accordingly, similar or parallel legislation enacted by a State or Territory
would continue to operate, and only directly inconsistent law would be excluded as a
result of s 109 of the Constitution.
Despite the choice of the federal Parliament not to cover the field with its proceeds
of crime legislation, States and Territories have been slow to replicate legislation
preventing people from publicising their stories for profit. Although all have some
form of proceeds of crime legislation,31 only two States and the Australian Capital
Territory provide for the confiscation of literary or 'artistic' proceeds.32 In broad effect,
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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.
2009 David Hicks and Australian Proceeds of Crime Legislation 319
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each of these statutes achieves the same purpose as that achieved by the federal
legislation. However, each does so in markedly different ways.
The most unique (and simplified) piece of State legislation is the Criminal Proceeds
Confiscation Act 2002 (Qld). Under s 200 of that Act, once a person has been convicted
of an offence and has derived benefits from a depiction of the offence in 'a movie, book,
newspaper, magazine, radio, or television production, or in any other electronic form,
or live or recorded entertainment of any kind' or from 'an expression of the prescribed
respondent's thoughts, opinions or emotions about the confiscation offence', then the
State may apply for a 'special forfeiture order' that the person 'pay to the State an
amount equal to all or part of the … benefits'. It is an odd omission that the term
'benefits' is not defined for the purposes of the provisions concerning special forfeiture
orders, although a review of how the term is used throughout those provisions and
how it is defined in relation to other provisions of the Act33 makes it reasonably clear
that the term is to be understood broadly and inclusively, certainly including cash and
other property,34 and probably including any service or advantage rendered.35 One
idiosyncrasy of the Act, however, is that the benefit must be derived 'from a
contract'.36 Curious and supererogatory as this requirement may be, it would require a
most unusual case in which the benefits were derived otherwise than from a
contract,37 and so is unlikely to materially undermine the efficacy of the Act's special
forfeiture order provisions.
The provisions concerning 'artistic profits' orders in the Confiscation of Criminal
Assets Act 2003 (ACT) are more closely aligned with the provisions in the federal Act.
The Territory Act in s 81 defines 'artistic profits' in terms broadly similar to those
employed by the federal Act; it comparably hinges its definition on the notion of
'commercial exploitation';38 it lists similar considerations to be taken into account
when making the order;39 and it permits the application for the order to be made
before the person is convicted of the offence.40 The Act is not entirely free from
idiosyncrasy, however. Of particular note is the time at which the application can be
made. Section 83(1) of the Territory Act provides that the Director of Public
Prosecutions can make an application 'in relation to the commission of a relevant
offence by an offender' (emphasis added). It is clear from s 83(2) that the Director need
not wait until a conviction is secured before making the application, but it is less clear
whether the Director need wait until a charge is laid. Section 79 defines the term
'commission' of an offence as including 'the alleged commission of the offence'. What is
unclear is whether the requirement that the commission of an offence at least be
'alleged' means that a criminal charge must be laid against the person, or whether a
bare allegation in the court hearing the application for the artistic proceeds order is
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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).
320 Federal Law Review Volume 37
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sufficient.41 The federal Act avoids this ambiguity by not confusing the provisions
which deal with the court's power to make the order with the provisions which deal
with the procedure by which such orders are obtained.42
The final State Act which deals with literary proceeds orders is the Criminal Assets
Confiscation Act 2005 (SA). This is the Act which bears the greatest similarity to the
federal Act, in that most of its provisions which deal with the making of a literary
proceeds order are almost identical to the corresponding provisions in the federal Act,
albeit with some unavoidable differences (such as the absence of a general provision
for foreign indictable offences). There is one material difference between the two sets of
provisions, which is that the State Act expressly affords the person to whom the order
is directed a right to 'appear and adduce evidence at the hearing of the application'.43
This is an interesting inclusion because, although an equivalent right could be inferred
from ss 152 and 154 of the federal Act, the only case yet decided under the federal Act
was conducted ex parte and in camera.44 The construction of the Act, then, gives rise
to no new sources of contention which have not already been canvassed in relation to
the federal Act. What is most interesting about the South Australian proceeds of crime
legislation is how it was amended to take account of the fact that Mr Hicks returned to
live in that State, amendments which have imperfect but significant parallels in the
federal jurisdiction.
In short, the South Australian legislation was amended to state explicitly that a
literary proceeds order could be made in relation to an offence which was triable
before the United States military commissions at Guantánamo Bay and to which Mr
Hicks pleaded guilty in February 2007. The process of legislative amendments was
careful and comprehensive. The first step was to pass the Criminal Assets Confiscation
(Serious Offences) Amendment Act 2007 (SA). It amended ss 3 and 10 of the principal Act,
with the result that the definition of an offence in relation to which a literary proceeds
order could be made now includes 'a foreign offence declared by the regulations to be
within the ambit of this definition',45 and that the Act applies to such foreign
offences.46 Subsequently, reg 8A was inserted into the Criminal Assets Confiscation
Regulations 2006 (SA). It states expressly that an offence triable before the military
commissions 'constituted under Title 10 USC Sec 948d of the Military Commissions Act
2006 of the United States of America' comes within the definition of an offence in s 3 of
the Act, as amended. It is important to note that the United States legislation to which
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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.
2009 David Hicks and Australian Proceeds of Crime Legislation 321
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reg 8A refers is that which was passed after the decision of the United States Supreme
Court in Hamdan v Rumsfeld47 — the decision which struck down an earlier version of
the military commissions as unconstitutional — in order to reconstitute the
commissions in a manner which would conform with that country's constitutional
strictures.48 The sum effect of these developments is that South Australia expressly
includes in its proceeds of crime legislation the offence to which, and the tribunal
before which, Mr Hicks pleaded guilty, and provides that its courts can issue a literary
proceeds order in respect of any benefits which a person in Mr Hicks' particular
position derives as a result of publicising his or her story about that offence.
No other jurisdiction has been as Jesuitical in its approach to proceeds of crime
legislation as South Australia. Indeed, only the federal Act has made any explicit
attempt to bring offences triable before the United States military commissions within
the reach of its literary proceeds orders. But even that attempt is of questionable effect,
given that it was undertaken before the decision in Hamdan v Rumsfeld, and is thus of
imperfect comparison with the South Australian position. The attempt in the federal
jurisdiction was made in 2004, with the passage of the Anti-Terrorism Act 2004 (Cth), in
which Parliament sought to expand the definition of 'foreign indictable offence' to
include an offence triable before the Guantánamo Bay military commissions as
originally constituted:
Meaning of foreign indictable offence
(1) If:
(a) an application (the current application) is made for a restraining order or
confiscation order in relation to conduct that constituted an offence against
a law of a foreign country; and
(b) if the conduct had occurred in Australia at the testing time referred to in
subsection (2), the conduct would have constituted an offence against a
law of the Commonwealth, a State or a Territory punishable by at least 12
months imprisonment;
then, for the purposes of the current application, the conduct is treated as
having constituted a foreign indictable offence at all relevant times.
(3) In this section:
offence against a law of a foreign country includes an offence triable by a military
commission of the United States of America established under a Military Order of
13 November 2001 made by the President of the United States of America and
entitled 'Detention, Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism'. 49
This anachronism persists in the current definition of a foreign indictable offence in
s 337A of the Proceeds of Crime Act 2002 (Cth). It has not been altered or removed since
the decision in Hamdan v Rumsfeld, and in that respect lags behind the South Australian
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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).
322 Federal Law Review Volume 37
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legislation. The problem with such tardiness, of course, is that an offence which is
triable before the military commissions as presently constituted, and to which Mr
Hicks pleaded guilty, is not explicitly included in the definition of 'foreign indictable
offence', and thus may be excluded from the definition and fail to satisfy the second
condition precedent to the making of a literary proceeds order under s 152(2). Some
argue that the use of the word 'includes' in the above definition means that Parliament
was seeking to be illustrative rather than exhaustive, and that an offence triable before
the reconstituted military commissions would come within the intention of the
definition, thereby satisfying s 152(2)(b).50 The merits of these opposing constructions
are considered further below. It suffices for now simply to register the defect in the
federal Act, and to observe that the construction of the definition will be central to any
attempt to obtain a literary proceeds order against Mr Hicks if he seeks to publicise his
story for profit.51
Before leaving this explanation and critique of the way in which Australian
proceeds of crime legislation applies to literary proceeds, it is important to consider the
only case yet to arise under any of the provisions discussed above, namely, Director of
Public Prosecutions (Cth) v Corby.52 This case, decided by the Queensland Court of
Appeal on 2 March 2007 on appeal from a decision of the District Court, arose out of
the arrest, conviction and sentence to 20 years' imprisonment of Schapelle Corby in
Bali, Indonesia for smuggling drugs into that country from Australia. The issue before
the Court of Appeal was whether to make orders under s 20 of the Act restraining Ms
Corby and her family from disposing of or otherwise dealing with benefits received by
them as a result of the publication of Ms Corby's story of notoriety. The orders sought
were described by Keane JA, with whom Williams JA and Helman J agreed, as ‘interim
orders’, presumably because they were merely preparatory to the making of a literary
proceeds order under s 152(2) of the Act.53 The Court of Appeal held that the orders
sought by the Director of Public Prosecutions should be made, and so proceeded to
order, inter alia, that the sum of $267,750 held by Ms Corby's family on her behalf not
be disposed of or dealt with otherwise than into the custody and control of the Official
Trustee in Bankruptcy,54 and that any future profits to be received from identified
media sources be subjected to the same restraint.
Although this result may appear unsurprising, there are some notable aspects of the
decision. The first is that it only imposed restraining orders. The proceeds referred to
_____________________________________________________________________________________
50 Monica Biddington, Selling Your Story — Literary Proceeds Orders under the Commonwealth
Proceeds of Crime Act 2002 (2008) Australian Parliamentary Library
/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.
2009 David Hicks and Australian Proceeds of Crime Legislation 323
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in the orders of the Court of Appeal were not confiscated by the Commonwealth, but
were simply 'frozen'. To make this order, the Court of Appeal needed only find that
there were 'reasonable grounds to suspect that [Ms Corby] committed an indictable
offence or a foreign indictable offence, and … derived literary proceeds in relation to
the offence'.55 This is a significantly lower standard than the balance of probabilities
standard found in s 152 of the Act, and, as it appears from the decision, required little
more than a prima facie case by the Director of Public Prosecutions that Ms Corby had
committed a foreign indictable offence. Given that it was more than two years between
this decision of the Court of Appeal and its order on 24 March 2009 that some but not
all of the proceeds derived by Ms Corby be confiscated (during which time the Official
Trustee has retained custody and control of the proceeds), it is arguable that the
freezing of the proceeds for a prolonged period without determination of what the
Court of Appeal called the 'substantive rights of the parties'56 constituted an inefficient
and unsatisfactory management of the Act's process of confiscation of literary proceeds
and the imposition of disproportionate punishment in respect of a matter as yet not
proven under s 152 of the Act.
Secondly, the decision is notable because it was decided ex parte and in camera. On
these issues, the Court of Appeal stated:57
The application is brought ex parte, as permitted by s 26(4) of the Act, because the
moneys in question might be easily disposed of before any order could be made if notice
of the application were to be given to the respondent. The same concern, namely, that the
DPP's application might be rendered nugatory if this application were heard in public,
led the court to hear the application in camera.
It is not contentious that the risk of disposal of assets (and the consequent
frustration of the court's orders) is an accepted basis upon which a court may hear an
application ex parte. Applications for Anton Piller orders are classic examples of this.58
However, that the same concern should lead a court to hear the application in camera
is less clear. In circumstances where the application was heard and judgment was
delivered on the same day, it is difficult to understand how the utility of the Court of
Appeal's orders would be better protected by excluding from the hearing not only the
party against whom they were made but also other people, presumably members of
the media, who might report the content of the application. It is received wisdom that
'[j]ustice cannot be done in camera',59 and that only exceptional cases fall outside this
rule.60 Although the Court of Appeal referred to the authority of J v L & A Services Pty
_____________________________________________________________________________________
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
324 Federal Law Review Volume 37
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Ltd (No 2)61 to justify conducting the hearing in camera, that was a case in which the
central issue was whether and to what extent the requirement of open justice could be
abridged for the purposes of protecting an applicant's privacy. At no stage did that
case proceed ex parte, and the statements of principle articulated by the Court62 were
made in a vastly different factual context, without any consideration of how
conducting the hearing in camera would protect the utility of the court's orders in
some way additional to conducting it ex parte.
The third notable aspect of the Court of Appeal's decision is that it restrained both
past and future literary proceeds. The Court of Appeal did not discuss the difference
between retrospective and prospective orders, and as such its decision to make both
represented a bare exercise of the powers in s 20 of the Act.
The final notable aspect is that the Court of Appeal, when considering where Ms
Corby's literary proceeds were 'derived', discouraged any analogy with the concept of
derivation in income tax law, which seeks 'to identify the locale of the rights or
activities which caused the production of the taxable income, or assessable income'.63
This is prudent. The complexities which arise in the assessment of where income is
derived for the purposes of income tax law are well known.64 In the absence of any
clear indication in the Act, there is no sensible reason to import the 'judicial exegesis'65
which surrounds this complex area of law into the interpretation of the Act's process of
confiscation of literary proceeds.
In sum, the decision of the Court of Appeal in Corby represents a solid beginning to
the interpretation of the literary proceeds provisions in the recent federal Act. While it
refrains from any substantial explanation and critique of the law, the Court of Appeal
began exploration of some of the complex issues the Act throws up, and indicated how
some provisions, such as those dealing with confiscation of future proceeds, might
operate. Usefully, the decision also insists that the interpretation of the Act should
focus on the words of the Act, rather than on an analogy with similar statutory
approaches in other areas of law.
Having discussed in detail the legislation and case law regulating how stories of
notoriety may be publicised for profit, this paper now applies those provisions to the
circumstances of Mr Hicks, and considers whether or not he is able to tell his story in a
way which will avoid the confiscation of any proceeds thereby derived.
DAVID HICKS — CAN HE SELL HIS STORY?
Even a cursory reading of the federal Act is sufficient to demonstrate that Parliament
has attempted a belt and braces approach to the confiscation of literary proceeds
derived from the publication of stories of notoriety. However, despite this attempt,
Australian proceeds of crime legislation may still have a few loose buckles when
_____________________________________________________________________________________
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).
2009 David Hicks and Australian Proceeds of Crime Legislation 325
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applied to the circumstances of Mr Hicks. This paper now considers whether Mr Hicks'
circumstances, should he publicise his story for profit, fall outside the ambit of the
federal Act. In sum, it is arguable that Mr Hicks' plea of guilty to an offence triable by
the military commissions is not sufficient to establish that he has committed a 'foreign
indictable offence' for the purposes of ss 152(2) and 337A of the Act; or that, depending
on the means by which Mr Hicks' story is publicised, any benefits derived are not
within his 'effective control', as that term is used in ss 153(4)(c) and 337 of the Act.
The first argument is easy to follow. Its central contention is that Mr Hicks has not
committed a foreign indictable offence, as that term is defined by the federal Act, and
so one of the three cumulative conditions precedent in s 152(2) has not been satisfied.
The result of such a contention, if accepted, is that the discretion of the court to make a
literary proceeds order does not arise and is not exercisable. There are two alternative
limbs to this argument. The first limb seizes upon the definition in s 337A to say that,
whatever Mr Hicks did, it cannot be classified as a 'foreign indictable offence' for the
purposes of the Act. The second limb contends that a court cannot find, on the balance
of probabilities and in all the circumstances of Mr Hicks' case, that he 'committed' the
relevant offence.
As noted above, the definition of 'foreign indictable offence' provided by s 337A of
the federal Act refers only to an offence which was triable before the Guantánamo Bay
military commissions as originally constituted. This leads to the obvious observation
that the military commissions, as presently constituted after the ruling of the United
States Supreme Court in Hamdan v Rumsfeld, are not explicitly included in the s 337A
definition. Accordingly, Mr Hicks might argue, any offence to which he pleaded guilty
before the present military commissions does not come within the definitional ambit of
the Act, and is not one to which a literary proceeds order could attach. That South
Australia deemed it necessary to amend its proceeds of crime legislation to make clear
that such an offence is one to which that legislation applies suggests that a similar
approach would be required at the federal level, although no principle of statutory
interpretation supports such a cross-jurisdictional comparison for the purposes of
ascertaining the meaning of the federal Act. Against this line of argument is the
proposition that the definition in s 337A is not exhaustive. This proposition maintains
that the word 'includes' in s 337A demonstrates that other offences which are similar to
those expressly mentioned in the provision are included within its definitional ambit.
Those who hold this position66 argue that it is consistent with the rule of statutory
interpretation set out in s 15AD of the Acts Interpretation Act 1901 (Cth), namely,
'[w]here an Act includes an example of the operation of a provision … the example
shall not be taken to be exhaustive'. The extension of this argument would be that the
limitation which the ejusdem generis principle imposes on the rule expressed by
s 15AD67 is not exceeded in the case of s 337A of the federal Act because the
Guantánamo Bay military commissions as presently constituted are 'of the same
kind'68 as the military commissions as originally constituted and specified in that
provision.
_____________________________________________________________________________________
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.
326 Federal Law Review Volume 37
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However, that proposition, although certainly grounded in received wisdom of
statutory interpretation principles, is far from uncontentious. As both Kitto and
Menzies JJ of the High Court in YZ Finance Co Pty Ltd v Cummings69 observed, an
interpretation that conforms to the rule now articulated in s 15AD is not the only
interpretation which can be given to the word 'includes'. Kitto J put it thus:70
Unlike the verb 'means', 'includes' has no exclusive force of its own. It indicates that the
whole of its object is within its subject, but not that its object is the whole of its subject.
Whether its object is the whole of its subject is a question of the true construction of the
entire provision in which the word appears. The well-known statement of Lord Watson
in Dilworth v Commissioner of Stamps (1899) AC 99, at pp 105, 106 should not be taken so
literally as to reduce the inquiry in a case like the present to an inquiry into the meaning
of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and
includes'. But a provision in which it appears may or may not be enacted as a complete
and therefore exclusive statement of what the subject expression includes. A provision
which is of that character has the same effect as if 'means' had been the verb instead of
'includes'. The question whether a particular provision is exclusive although 'includes' is
the only verb employed is therefore a question of the intention to be gathered from the
provision as a whole.
The effect of this division in the meaning of 'includes' is that, when the term is
deployed in an enactment to signify 'means and includes', it is not being used to give
'an example of the operation of a provision'. Not all usages of the term, therefore, come
within the scope of the rule of statutory interpretation set out in s 15AD of the Acts
Interpretation Act 1901 (Cth). The intention of Parliament must first be divined to
ascertain whether or not the word 'includes' demonstrates that the provision in which
it is used intends to give an example. If the intention indicates that Parliament was not
attempting mere illustration in that provision, but rather an enumeration of the
situations in which the provision is to operate, then s 15AD is of no use and the
interpretation given to the provision will likely be that the term was deployed to
signify 'means and includes'.
Applying this reasoning to the circumstances of s 337A of the federal Act, it is
arguable that the intention of Parliament is that the example provided in s 337A is
exclusive, not illustrative. Such an argument emphasises three points of statutory
interpretation. The first point relates to the usage of inclusive and exclusive words in
the Act. The Act often uses the words 'includes' and 'means' in its definitional
provisions,71 and on one occasion uses the words 'include[s] the following (without
limitation)'.72 The use of multiple phrases such as these would ordinarily disclose
some discrimination on behalf of the draftsperson as to which phrase is intended to
have an exclusive effect, and which an inclusive effect.73 The discrimination disclosed
in respect of this draftsperson's use of 'includes' is, however, less consistent — at some
times it is used to give the provision a broad and inclusive meaning,74 but at other
times it is used 'to choose one out of two or more otherwise possible meanings by
_____________________________________________________________________________________
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.
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).
2009 David Hicks and Australian Proceeds of Crime Legislation 327
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specifying the intended coverage'.75 The use of the word in s 337A is an example par
excellence of this latter usage. The section does not provide a list of offences which are
to be included or in any way suggest that, at the time it was drafted, there are other
tribunals of the same kind as the Guantánamo Bay military commissions as originally
constituted; rather, it specifies that an offence triable before that tribunal, and not some
later reconstitution of it, falls within the coverage of the term 'foreign indictable
offence'. This leads on to the second point of statutory construction, which relates to
the specificity with which the example in s 337A is stated. While mere specificity in the
articulation of the example does not in itself resolve the question of inclusiveness or
exclusiveness, the explanatory memorandum to the Bill which inserted s 337A into the
Act confirms an interpretation of the section which recognises its exclusive effect. The
memorandum reads:
For the purpose of considering the meaning of foreign indictable offence, proposed
subsection 337A(3) inserts a specific category of offences that are to be considered as offences
against a law of a foreign country. This subsection covers offences that are triable by a
military commission of the United States of America established under a specified military
order. (Emphasis added)76
Parliament's intention is clear. It sought only to include in the definition a 'specific
category of offence' which arose pursuant to a 'specified' order of the United States
Executive. Illustration and inclusiveness were not the intention of this amendment to
s 337A. To the contrary, the 'intended coverage' of the term was denoted with
specificity and exclusivity. The final point of statutory construction which supports
this line of argument is the election of the term 'includes' from the hierarchy of terms
used in the Act. If the draftsperson wished the definition of 'foreign indictable offence'
to be truly inclusive and expansive, he or she would have been expected to use, as
appears elsewhere in the Act,77 the words 'include[s] the following (without
limitation)'. If one accepts that the interpretation of this phrase must differ from the
interpretation of 'includes', then the latter must be given some less inclusive
construction than the former. While that will not result in the verb 'includes' being
interpreted as an exclusive word wherever it is used in the Act, it does prompt an
interpretation which, where possible, is limited to including only the 'intended
coverage' of the example, and no more.
The result of this line of argument, if accepted, would be that only the military
commissions as originally constituted would come within the ambit of the definition in
s 337A, and thus the offence to which Mr Hicks pleaded guilty before the military
commissions as presently constituted could not be regarded as a 'foreign indictable
offence'. The court would be unable to be satisfied that Mr Hicks had committed such
an offence, and thus one of the conditions precedent78 to the exercise of its discretion
to issue the literary proceeds order would not be met. Any literary proceeds which Mr
_____________________________________________________________________________________
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).
328 Federal Law Review Volume 37
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Hicks had derived from the publication of his story would not therefore properly be
the subject of confiscation under the federal Act.79
The alternative limb of the argument that Mr Hicks has not committed a foreign
indictable offence contends that the circumstances of his case are such that a court
cannot be satisfied as more likely than not that he 'committed' an offence for the
purposes of s 152(2)(b) of the federal Act. The essence of this contention is that Mr
Hicks' guilty plea was entered in circumstances where the legitimacy of the
Guantánamo Bay military commissions and the reliability of his plea are undermined
by, respectively, allegations of lack of fair trial standards and allegations of duress. The
difficulty in this submission is that Mr Hicks must show that the subversion of these
aspects of the proceedings of the military commissions is sufficient to enable a court to
find on the balance of probabilities that he has not in fact committed a foreign
indictable offence, rather than simply that the procedures by which he was convicted
were not as exemplary as they might have been.
Whether or not the decision of the military commissions would be recognised in
Australia is a question of law determinable by the usual private international law
principles. At common law (and presuming the absence of a relevant international
agreement or domestic enactment), the courts of one jurisdiction will in principle
recognise and enforce the judgments of foreign courts and tribunals, unless a defence
to an action on the foreign judgment exists.80 Two such relevant defences are where
the judgment is contrary to public policy81 or founded upon a denial of natural or
substantial justice.82 Arguably, the proceedings before the Guantánamo Bay military
commissions were prescribed and conducted in a way which denied Mr Hicks natural
or substantial justice, and so should not be recognised by Australian courts — a
position which derives support from some of the most eminent Australian legal
scholars and practitioners, who concluded that the proceedings conducted at the
military commissions contravene the standards of a fair trial laid down by both
international and Australian law.83 For similar reasons, public policy may also require
non-recognition. However, the issue is not resolved simply by applying reasonably
_____________________________________________________________________________________
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) 194.
83 Nicholson et al, above n 2.
2009 David Hicks and Australian Proceeds of Crime Legislation 329
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settled principles of private international law to determine whether or not Australia
would recognise a decision emanating from the military commissions. In order to
obviate the operation of s 152(2) of the federal Act, Mr Hicks must demonstrate that, on
the balance of probabilities, he has not committed a foreign indictable offence — a task
in which a challenge to the legitimacy of military commissions' procedures and
judgments would likely be necessary, but not sufficient. While a finding by the
Australian courts that the plea entered by Mr Hicks before the military commissions
should not be recognised for want of natural or substantial justice or for other public
policy reasons would of course advance Mr Hicks' attempts to show that the condition
precedent in s 152(2)(b) is not satisfied, it would not exclude the capacity of the
Director of Public Prosecutions to adduce evidence other than the previous plea to
establish as more likely than not that Mr Hicks had committed a foreign indictable
offence within the definition provided by s 337A. In practical terms, then, the non-
recognition of the judgment rendered by the military commissions would not
determine the question of mixed fact and law arising from s 152(2)(b), but would
simply make the burden of proof, the incidence of which is upon the Director,84 more
difficult to discharge, given the absence of evidence of Mr Hicks' previous plea and the
difficulty of adducing evidence of his conduct overseas.
The second argument which Mr Hicks might advance to quarantine any profits
from the publication of his story is that, depending on the means by which publicity is
achieved, any benefits derived are not within his 'effective control', as that term is used
and defined in ss 153(4)(c) and 337 of the Act.
The lynchpin for this argument is an observation that the provisions of the Act
which concern whether someone has derived literary proceeds and if so whether to
confiscate them are confined in their operation to the person who actually committed
the offence in respect of which the literary proceeds order is sought.85 Because of this
inherent limitation in the relevant provisions, the Act expressly states that, when
determining these questions, the court treat as property of that person any property
which was not received by him or her, but which was transferred or paid to someone
else at his or her direction,86 or any property which is subject to that person's effective
control.87 The fact that the Act is explicit when it seeks to create these two exceptions
to the otherwise limited scope of the provisions concerning literary proceeds orders
confirms not only that the limitation is deliberate but also that the exceptions to that
limitation are confined only to those two situations which are articulated in the Act.88
_____________________________________________________________________________________
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).
330 Federal Law Review Volume 37
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While the extension of the Act's scope to cover these two situations makes it reasonably
clear that such a person cannot him- or herself publicise a story of notoriety for profit
and then quarantine those proceeds from restraint and confiscation by giving them to a
family member, friend, charity or other third party, it is less clear how the Act deals
with a scenario in which the person tells a family member or trusted confidant the
story, and does not object to that second person profiting from the public retelling or
narration of that story. Whether the benefits derived by the narrator would be deemed
by a court to remain within that person's effective control would be a difficult question
of mixed fact and law.
As noted above, the Act seeks to give a broad meaning to the term 'effective
control', but does so by unusual and problematic means. The Act provides that
property may be subject to a person's effective control irrespective of whether or not he
or she holds any legal or equitable interest, or any right, power or privilege, in the
property.89 This is a vague provision which gives little content to the term, and the
Act's provision of two examples where property is taken to be under a person's
effective control — if it is held on trust for that person90 or is disposed of without
sufficient consideration91 — does little to rectify the imprecision. Similarly, the
enumeration of certain considerations to which a court may have regard in
determining whether or not property is subject to the effective control of a person,92
one of which is any family relationship which might exist between the people who can
claim an interest in the property,93 achieves only marginally clearer delineation of the
concept. While this ambiguity leaves a great deal in the hands of the courts, one
conclusion can be drawn from this haphazard definition of 'effective control': if no
factual nexus exists between the derivation of the benefits and the influence which the
person in respect of whom the literary proceeds order is sought is able exert over those
benefits, then a finding of effective control would not be appropriate.
And so the question arises: if Mr Hicks tells a family member or trusted confidant
his story, and that second person profits from the public retelling or narration of that
story, can those profits be said to fall under Mr Hicks' effective control? Put another
way, while the Act clearly extends its confiscatory scope to literary proceeds derived
by Mr Hicks himself and transferred to another, how does it deal with the transfer of
the capacity to tell (or 'narrate') the story?
The short answer is that the Act does not deal with such a scenario. If no factual
nexus exists between the person who narrates for profit Mr Hicks' story of notoriety
and the influence or control which Mr Hicks is capable of asserting over that profit,
then that statute cannot seize upon Mr Hicks as a person who has derived literary
proceeds or has effective control over literary proceeds derived by another person, and
a literary proceeds order cannot issue. Central to an assessment of whether the
necessary factual nexus exists is the question of fact, determinable on the balance of
probabilities,94 of whether Mr Hicks exercises the requisite degree of control over the
profits derived by the narrator. Given that the lack of any interest or right in the
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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).
2009 David Hicks and Australian Proceeds of Crime Legislation 331
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property does not preclude a finding of effective control,95 it is likely that evidence
concerning the relationship between Mr Hicks and the narrator of his story would be
crucial to the determination of the question of effective control.96 While minds
naturally differ on what constitutes effective control sufficient to establish the
necessary factual nexus, it is likely that a close family relationship between Mr Hicks
and the narrator would satisfy the court as more likely than not that Mr Hicks
exercises effective control over the literary proceeds thus derived. If, however, the
relationship between Mr Hicks and the narrator were of a more removed nature, or if
Mr Hicks entered into some arrangement with the narrator by which it was clear that
he relinquished any capacity to assert control over the profits derived, such evidence
might make a finding of effective control more unlikely.97 According to the standard
of proof laid down in the Act, if the court finds it equally likely as not that Mr Hicks
retains effective control over literary proceeds derived in this fashion, the consequence
is that the Director of Public Prosecutions has failed to prove the case and a literary
proceeds order should not be made.
Such a result may seem surprising at first blush. However, on closer inspection of
the purpose of the provisions concerning literary proceeds orders, the result makes
good sense. This is because the Act is part of an area of law which must take into
account a spectrum of possibilities. At one end of the spectrum is the situation where
people seek to profit from the publication of stories which detail their own crimes or
notoriety. This is the situation which the Act properly regulates. At the other end of the
spectrum is where other people, wholly unconnected with the alleged offenders, seek
to profit from publicising commentaries or narratives about those same acts of crime or
notoriety. This group of people includes media reporters, biographers and even,
perhaps, in some indirect way, commentators in the legal and other professions. The
Act, of course, does not seek to restrain or confiscate literary proceeds derived by
people who find themselves in this situation at the other end of the spectrum. As this
paper has sought to demonstrate, however, located in the middle of this spectrum are
difficult situations, to which the Act has uncertain application. The use of a narrator, as
described above, may, depending on the circumstances of the particular case, fall
closer to that end of the spectrum which is not subject to the literary proceeds regime
established in the Act.98 Literary proceeds derived in that situation may, therefore, be
properly free from restraint or confiscation.
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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 li kely 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.
332 Federal Law Review Volume 37
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CONCLUSION
To date, Mr Hicks has shown no desire to publicise his story of notoriety, let alone to
profit from doing so. If Mr Hicks does at some point in the future seek to publicise his
story for profit, the Proceeds of Crime Act 2002 (Cth) will almost certainly be the crucial
instrument which determines whether or not he is able to retain that profit. This paper
has considered in detail the applicability of that Act and other Australian proceeds of
crime legislation to Mr Hicks' situation, and has identified some arguments which he
may be able to advance to obviate the restraint and confiscation of any literary
proceeds. None of these arguments is without difficulty, but all take the words of the
relevant statute as their starting point, and seek to interpret them in light of the
purpose of the legislation in which they are contained. Accordingly, while nothing
prevents Mr Hicks from publicising his story, it is uncertain whether (but not
impossible that) he would be able to retain any profits derived from that publication.

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