AN UNLIKELY trio indeed, but Mark “Chopper” Read, Schapelle Corby and David Hicks have more in common than first meets the eye, according to the latest parliamentary research.
All three cases raise troubling questions about the applicability of the existing proceeds of crime laws (including state and territory laws) “to people who have profited, or may profit in the future, from their criminal notoriety through book, magazine, film” or even an Underbelly-style television deal.
The Selling Your Story report prepared by parliamentary researcher Monica Biddington delves into the murky issue of literary proceeds orders under the Commonwealth Proceeds of Crime Act 2002.
Australian literary proceeds orders have not yet been issued by any Australian courts. In making the proceeds order, the courts have a wide ambit to consider whether, on the balance of probabilities, an accused has committed an indictable offence. The court can then take into account a whole range of factors in determining the order, including public interest, the social, cultural or educational value of the product or activity, the seriousness of the offence and how long ago the offence was committed.
So what of the implications for Corby and Hicks? It appears that the prospects of making any money from her story are slim to none for convicted drug smuggler Corby. Her 2006 book My Story, was published by Pan Macmillan Australia, and a New Idea article appeared in late-2006. The assets from sales have already been frozen following an order by the Supreme Court of Queensland made under section 20 of the Proceeds of Crime Act.
All indications are that the proceeds of the book and article, estimated at more than $282,000, will never benefit Corby. Currently held in an Indonesian bank account held by Corby’s brother-in-law, they can most likely be recovered by Australian authorities with the cooperation of Indonesia under the Commonwealth’s Mutual Assistance in Criminal Matters Act 1989.
David Hicks has not publically expressed any intention to tell the story of his detention at Guantanamo Bay, but speculation has been rife about the possibility ever since his return to Australia. The Proceeds of Crime Act was specifically amended to cover Hick’s charges in 2004. Under the pre-trial agreement, Hicks has agreed to assign to the Australian Government any profits or proceeds from such a publication.
The report raises some interesting questions at this juncture, exploring how such an order would stand up to a closer enquiry into the legitimacy of Hick’s conviction, raising doubts about the fairness of his US military trial.
The parliamentary report cautiously advises ministers that “the Proceeds of Crime Act will not prevent Hicks from telling his story, but could be used to potentially confiscate any profits he makes as a result of the sale of that story”.