Confiscating Your Life Story

I think most of us agree that if a drug dealer buys himself a Ferrari with heroin money, the car is forfeit if it can be proved the money he bought it with was derived from illegal activity. A bank robber shouldn't be allowed to keep the money he stole, even if he serves the time. This is a long-standing pillar of criminal law, and despite the headaches modern international tax law must give prosecutors, it's pretty uncontroversial.

What if the profit is accrued less directly? Under the Proceeds of Crime Act 2002, literary proceeds are also illegal (that is, subject to confiscation). Leaving aside the tabloid hilarity of Corey Delaney, few of us would be comfortable with a killer getting a handsome payday for a Today Tonight interview while his victim's parents are still coping with a devastating loss. If it would sell ads, the media would pay for a story - it's their business and they can't realistically be faulted for that - so it falls to the law to see that justice is done, and remove the incentive to engage in high-profile crimes.

The scheme, though, is not without its troubling aspects. What if someone is convicted but maintains their innocence? What if they publish their autobiography years afterward, in which the crime (admitted or not) plays a part? Under the law, if the notoriety you gained from committing the crime contributes to any benefit, then you're in trouble. It's not hard to imagine a situation where a person becomes famous (i.e. notorious) from committing a crime, but uses the experience to become, say, an activist for legal reform. This would be illegal under the Act, which specifically includes "any live entertainment, representation or interview" as a literary benefit. Being paid on the lecture circuit is a definite no-no. I don't know how a judge might weigh up the contribution of criminal-related notoriety to an income stream, but one supposes that sort of question is what keeps our judges on the gravy train.

This brings us to the cause célèbre of the day, David Hicks. The controversial gag order imposed by the Guantánamo prosecutors, although probably unenforceable here, will expire soon, and Hicks is already fielding many offers from media outlets. Although the Hicks camp has denied that they mean to profit from the affair, the issue is obviously going to come up, especially when seven figure sums are being mentioned. The A-G has been pretty unequivocal in his previous statements on the issue: "He would expect authorities to prosecute Mr Hicks from illegally profiting from his story." On the other hand, Dick Smith has said he should be able to profit. Presumably the law officers will give McLelland's statements a little more weight, but you never know. The PM himself was more ambiguous:

Prime Minister Kevin Rudd told Fairfax radio that it is up to the Director of Public Prosecutions and Federal Police to determine if any media agreement is within the law.

"Here we've got something quite specific, which is whether a person who has fallen foul of the law should be able to sell their story for profit, and I'll leave that determination to the independent judicial and legal authorities," he said.

The question we're left with, and this goes right to the heart of the whole Hicks case, is which law - and whose law - might he have "fallen foul" of? Since Hicks has never been charged under Australian law, for his profits to be seized, he must, under the Act, have committed a "foreign indictable offence", specifically an offence against a law of a foreign country. There's a second part to the test, too:

...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.
_{(PROCEEDS OF CRIME ACT 2002 - SECT 337A)}

I'm certainly no lawyer, but I'll go out on a limb and say that Hicks' Gitmo offences would arguably fail both provisions of the foreign indictable offences stipulation. Testing them in court would surely open one interesting can of worms, and could embarrass either the Australian or US governments should they fail to pass the test. Given that fact alone, if I was David Hicks, I'd be talking to ghostwriters right now.