April 3, 2007

Whilst Attorney General Philip Ruddock insists the gag order imposed on David Hicks was not requested by Australian authorities, and publicly praises the virtues of freedom of speech and communication across the national airwaves under Australian law, a vastly different picture emerges from the Government’s legislative and enforcement activities.

This form of censorship is reminiscent of the climate which prevailed in 17th century England with the advent of the printing machine.

Copyright law has turned into an instrument of censorship largely with the approval of the Attorney General, whilst the Government’s relentless pursuit of publishers under the Proceeds of Crime legislation raises serious questions about the actual value of freedom of communication and speech in Australia. The implied right of free speech and communication under the Australian Constitution has in any event been a very weak one historically. This was recognised in a recent notification to the Human Rights Committee over a council by law in Townsville restricting freedom of communication in malls.

The book, ‘Detainee 002, The Case of David Hicks’ by former ABC North American correspondent Leigh Sales plots the story of David Hicks’ capture, detention and torture at the hands of the US military.

The story is told in the third person with Sales including information obtained in the course of her work as an ABC correspondent, and sourced from interviews with Terry Hicks and Hicks’ Lawyers.

Debate continues as to the enforceability in Australia of the 12 month gag order imposed on Hicks, which prevents him from communicating either directly or indirectly through a third person with the media about the circumstances of his capture and detention.

It seems likely that the Federal Government will move swiftly under Federal proceeds of crime legislation to claim any proceeds from any profits of the book as they did in the case of Schapelle Corpy over her book ‘My Story’ which has sold more than 100,000 copies.

Although arrangements made by Corby’s sister Mercedes may shelter the proceeds from the reach of the Federal Government, the Government didn’t waste much time obtaining an order to seize the profits. The money had been wired into the bank account of her Indonesian husband, a foreign resident. The publishers of the book were about to wire another $68,000 owed to Mercedes on account of syndication rights prior to the Federal DPP appealing a Brisbane Court decision earlier in March.

One of the co-authors of the book, Lisa Bonella, foresaw the possibility of the Government acting under the Proceeds of Crime Act, and also apparently the vigour with which she and her communications would be tracked by authorities.

She uses an alias ‘Lisa’ whilst in Indonesia, insisting all documents be directed to her alias. Her co-author Tom Gilliatt interpreted the Act more narrowly, to stop those convicted of a crime from profiting from it. In fact the legislative regime is intended to be conviction based. Australian legislation is permissive in allowing pecuniary penalty orders against certain persons irrespective of whether the person against whom the order has been sought has been convicted or even charged with an offence. States have extended their regimes to cover civil offences as well as criminal acts.

The provisions restraining dealing with the literary proceeds or commercial exploitation have yet to be tested, so it is difficult to assess their impact.

However it is instructive that State Governments have never used similar legislation to seize assets of criminals or associates acquired through merchandising or chequebook journalism.

Mercedes Corby invoiced the publisher to enable her to receive payment before the book became public knowledge.

The Australian Federal Police had been tracking Lisa Bonella through emails, whilst using Immigration Department personnel to follow Pan Macmillan employees.

Confidential court documents reveal that the publisher Pan Macmillan paid a $395,000 advance for the book rights with a further $110,000 being paid by the Australian Womens Weekly for the right to print extracts. Under the deal, 85% of the advance plus any future royalties were to go to Mercedes.

On the 2nd of March the Queensland Court of Appeal froze $267,000 paid into the account of Mercedes’ husband Wayan Widyartha to allow the DPP to apply for confiscation under the Proceeds of Crime Act.

There are also questions as to how much money from the proceeds is left in the bank account of the Indonesian resident.

Much of the money is being used to buy Corby basic essentials in jail, pay for her relative’s visits and fund her legal defence.

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