David Hicks and Australian Proceeds of Crime Legislation: Can He Sell His Story?
| Author | Lucas Bastin |
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| DOI | http://doi.org/10.22145/flr.37.2.6 |
| Subject Matter | Article |
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 <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 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.
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