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Hicks and disgorging profits II

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Almost a year ago, I speculated on this blog that the Federal government would not move to strip David Hicks of the profit he gained from the royalties on his book, saying:

…it seems the Australian government is caught between Scylla and Charybdis. On the one hand, if it leaves Hicks with the money, it implicitly concedes that the Guantanamo process does not stand up to independent legal scrutiny. On the other hand, if it decides to pursue Hicks, it may open up inquiries about the process of his detainment and guilty plea in an Australian court which it would rather not ventilate. As always, I shall watch with interest to see what happens, if anything…they may decide this one is best left alone…

For non-Australians or people living under a rock, Hicks was the sole Australian to plead guilty and to be convicted of providing material support for terrorism under the United States’ Military Commissions Act. He was interned in Guantanamo Bay from 2001 to 2007, when he was repatriated to Australia after a long campaign by his family and others. Last year, he wrote memoirs entitled Guantanamo: My Journey, which has sold 30,000 copies. Hicks’ publisher, Random House, will not disclose the profits Hicks has made.

Well, it seems that I was wrong in my prediction that the Federal Government would leave this one alone. On 20 July 2011, the Commonwealth Director of Public Prosecutions served him with a notice of application for an order to restrain the royalties derived from the sale of the memoirs (presumably pursuant to s 20 of the Proceeds of Crime Act 2002 (Cth)). The CDPP will then move to seize the restrained royalties as being proceeds of crimes. The Australian reports:

…An Australian Federal Police spokeswoman said the matter would be heard by the NSW Supreme Court on August 3. The CDPP’s decision ends a long-running game of chicken involving Hicks, publisher Random House and commonwealth authorities, whom many assumed would not seek to recoup Hicks’s earnings for fear the military commission would not be recognised. Hicks’s father, Terry, savaged the move, describing it as “absolutely disgusting”.

“He’s a person who signed a piece of paper to get out of a hellhole,” he told The Australian. “I think it’s the most disgusting thing.” Hicks was sent to Guantanamo Bay in late 2001 after he was captured in Afghanistan by the Northern Alliance and handed over to US forces.

He was returned to Australia in May 2007 after he signed a pre-trial agreement pleading guilty to terror offences. Under the terms of the deal, Hicks was required to spend a further seven months in Adelaide’s Yatala prison before his release in December 2007.

Then attorney-general Philip Ruddock amended the proceeds of crime act to recognise US military commissions, a move designed to anticipate any attempt by Hicks to profit from his experience. However, that clause was later removed after the US congress passed legislation recognising the commissions.

University of NSW law professor George Williams said the CDPP would have a strong case. “But that is subject to a court giving weight and recognising the validity of Hicks’s plea and the conviction. This may well be an opportunity for David Hicks to open up questions about those matters,” Professor Williams said.

I’m presuming that the CDPP will now seek a literary proceeds order under s 152 of the Proceeds of Crime Act 2002 (Cth). Sub-section (2) provides that applications for proceeds of crimes orders can be made where a person has committed a “foreign indictable offence” (regardless of whether the person has actually been convicted of the offence). Section 337A describes “foreign indictable offence” thusly:

(1)  If:

(a)  an application (the current application ) is made for a * freezing order, * production order, * search warrant, * 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.

Example:    X commits an offence against a law of a foreign country at a time when the conduct is not an offence against Australian law. X then derives literary proceeds in relation to the offence and transfers the proceeds to Australia. After the proceeds are transferred, a new Commonwealth offence is created that applies to the type of conduct concerned. An application is then made for a literary proceeds order. For the purposes of the proceedings for that order, the original conduct is treated as having constituted a foreign indictable offence at all relevant times and accordingly an order can be made in respect of those proceeds.

(2)  The testing time for the current application is:

(a)  if the current application is an application for a * freezing order, * production order, * search warrant or * restraining order–the time when the current application was made; or

(b)  if the current application is an application for a * confiscation order (other than a * literary proceeds order) in relation to a restraining order–the time when the application for the restraining order was made; or

(c)  if:

(i)  the current application is an application for a literary proceeds order; and

(ii)  an earlier restraining order has been made in respect of the same offence;

the time when the application was made for that earlier restraining order; or

(d)  if the current application is an application for a literary proceeds order but paragraph (c) does not apply–the time when the current application was made.

Like all legislation, this is a little circuitous. But the essence of it is this: if Hicks is found to have committed a foreign indictable offence, and at the time when the application is made for a restraining order, the conduct is a crime under Australian law punishable by at least 12 months imprisonment, the court may grant the literary proceeds order pursuant to s 152(2) of the Act. Working out whether or not Hicks committed a foreign indictable offence may well open the whole Guantanamo process to judicial scrutiny in Australian courts. However, it is worth noting that Hicks’ conviction is not determinative of whether he committed a foreign indictable offence. So s 152(2) states:

             (2)  A court with * proceeds jurisdiction may make an order requiring a person to pay an amount to the Commonwealth if:

(a)  the * DPP applies for the order; and

(b)  the court is satisfied that the person has committed a * foreign indictable offence (whether or not the person has been convicted of the offence); and

(c)  the court is satisfied that the person has derived * literary proceeds in relation to the offence.

The court will have to decide for itself whether it is satisfied that Hicks committed an indictable offence under American law.

The other possibility (which I mentioned in the previous post) was that the Australian government could attempt to enforce the agreement Hicks entered into with the US government when he was released to Australia, whereby he agreed that any profits from any memoirs or media appearances would go to the Australian government. The difficulty with enforcing the agreement is that the Australian government was not a  party to the contract, and arguably has no standing to enforce it, unless they can argue an exception to the contractual doctrine of privity (perhaps pursuant to Beswick v Beswick?). But Hicks would attempt to argue that he entered the contract under duress, out of his desire to get out of Guantanamo Bay and home to Australia, and thus the contract should not be binding.

What do you think? Should Hicks be stripped of his profits or not? Has the CDPP opened up a can of worms which it would have been better off leaving unopened, or is this a good idea?

P.S. Regardless of the merits or otherwise of this particular application, I must confess to some general discomfort with the lack of judicial discretion and harshness of the Proceeds of Crime Act 2002 (essentially along the lines mentioned here).


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