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Australian media asleep at the wheel on proceeds of crime

The legislation enabling the AFP to raid the Seven Network over payments to Schapelle Corby was put in place over a decade ago. And no one spoke up about it.

Why were Australian Federal Police officers raiding the offices of the Seven Network yesterday in search of evidence about payments to Schapelle Corby?

The reason goes back a long time, to the 1990s and the gathering frustration that, to that point, federal proceeds of crime legislation had not produced, well, any proceeds of crime. The original federal proceeds-of-crime scheme, established by the Hawke government, relied on a specific conviction for an offence in order for courts to order the forfeiture of assets, in effect making it easy for convicted criminals to keep their ill-gotten gains if an asset couldn’t be directly linked to the crime.

After some years of dithering, in 2001, the Howard government moved to address that with a new proceeds of crime bill that provided for a civil action to recover assets. Then 9/11 came along, and the 2001 election, and the bill was held over to be beefed up with the inevitable terrorism references.

But the Howard government also added a section on “literary proceeds”, intended “to deprive persons of literary proceeds derived from the commercial exploitation of their notoriety from having committed offences”. A court could require a person to pay the Commonwealth if “the person has committed an indictable offence (whether or not the person has been convicted of the offence); and the court is satisfied that the person has derived literary proceeds in relation to the offence”. Literary proceeds were “publishing any material in written or electronic form; or any use of media from which visual images, words or sounds can be produced; or any live entertainment, representation or interview”.

The bill went through two Senate inquiries, one of which was over the summer of 2001-02, but it was extended, with plenty of time for affected parties to make submissions. Another, quickie inquiry was held later in the year after amendments were made to the bill, and it was passed in September 2002. When then-assistant treasurer Helen Coonan introduced the bill in the Senate, she specifically referred to the bill being aimed at when “criminals sell their stories to the media”.

Australia’s media, however — normally quick to sense any affront to their freedoms — were asleep at the wheel. None of them appeared to twig that this represented a potential threat not merely to chequebook journalism when it involved criminals, but it might result in AFP officers raiding them in search of evidence and restraining orders preventing them from paying money. No media outlet made a submission to the inquiries about the bill — indeed, no media company made any submissions to the Australian Law Reform Commission’s review of proceeds of crime law in 1999, which informed the legislation eventually put in place by the government.

Moreover, in 2011 the Gillard government in effect gave the Australian Federal Police control over the process of tracking and seizing proceeds of crime. It amended the Proceeds of Crime Act 2002 to enable the AFP to launch proceeds of crime litigation itself, rather than via the Commonwealth Director of Public Prosecutions — something to which the Law Council of Australia strongly objected. The government also established within the AFP a “Criminal Assets Confiscation Taskforce” to pursue asset forfeiture. In 2012, the CDPP had a notable defeat when it had to abandon its pursuit of former Guantanamo inmate David Hicks’ book proceeds after admitting it couldn’t rely on evidence from the military commission that had convicted Hicks, or even Hicks’s admissions to the commission. Along with the government’s payout to Mamdouh Habib, it represented a form of closure on some of the squalid deals and grubby behaviour of the Howard government in the early years of the War on Terror.

The AFP argues that proceeds of crime investigations are not about freedom of speech. A media representative told Crikey today:

Literary proceeds action does not prevent a person from telling his or her story to the media. The provisions do not interfere with freedom of speech. The purpose of the provision is to prevent a person deriving a financial benefit from criminal activity.”

The cops are correct; this is not a free speech issue. It is, however, a free press issue. Regardless of what we may think about the unsavoury practice of chequebook journalism, it is always dangerous when law enforcement agencies raid media outlets, and there is a chilling effect regardless of the purpose or appropriateness of the raids.

It’s thus rather a pity that no media outlets spoke up when the legislation that enables such raids was being put together over a decade ago.

12
  • 1
    klewso
    Posted Wednesday, 19 February 2014 at 1:11 pm | Permalink

    And when law enforcement agencies go hand-in-glove with certain media for their own benefit?

  • 2
    Posted Wednesday, 19 February 2014 at 3:21 pm | Permalink

    How does the law apply to people such as Peter Greste if he is convicted and publishes/profits later?

  • 3
    Mayan
    Posted Wednesday, 19 February 2014 at 3:30 pm | Permalink

    Silly me, I though imprisonment was the punishment. Good luck to those who can turn their hand to writing or whatever and make a few dollars.

  • 4
    Marcus G
    Posted Wednesday, 19 February 2014 at 3:41 pm | Permalink

    The one thing no one is asking here is has Corby got paid? If she has an Australian bank account then this would be easily tracked, one would assume. If she’s got an Indonesian bank account, does the AFP have authority to check that? Are there the same id requirements in Indonesian as here? Can she open one in a false name? Did the AFP ask 7 for details of such a transaction and 7 refused? Did they seek simply turn up to 7 unannounced? Seems there were media present when they arrived. Silly commentary on Studio 10 this morning with various out cries of ‘how dare they’! Well how dare SC get paid for her illegal deeds!

  • 5
    zut alors
    Posted Wednesday, 19 February 2014 at 4:03 pm | Permalink

    In Corby’s case could the money be legally paid directly to another family member?

    Frankly, with the breadth of parole restrictions on her she’d be well-advised to remain silent. Although the commercial media will love it if she’s re-arrested & again incarcerated as it will create another circus giving them more tripe to publish. Yawn.

  • 6
    negativegearmiddleclasswelfarenow.com
    Posted Wednesday, 19 February 2014 at 4:32 pm | Permalink

    What the AFP raid on channel 7 indicates is that toxic effect of the squalid and grubby behaviour of the Howard government post 9/11 lingers.
    The raid demonstrates a level of acute panic within the AFP – in the past they have been able to manipulate the situation in Bali to ensure Corby went behind bars and in collaboration with the MSM and other government agencies keep her there.
    Questions about missing CCTV footage and post 9/11 baggage handler corruption remain. The AFP is worried about Corby talking, payment or no payment.
    That a bevy of corrupt senior politicians, high ranking police officers and senior journalists colluded to put an innocent citizen behind bars in a foreign land to hide their own nefarious behaviour and appease the Indonesian government is an increasingly foul stench in the nostrils of the Australian community.
    The abuse of an underdog by the establishment will be seen by the average Aussie as a High Crime not dissimilar to treason. As this could happen to anyone of us, it is a fundamental affront to our national character. If the elites want to staunch this they need to reign in the AFP – I believe that it may be too little too late.

  • 7
    JohnB
    Posted Wednesday, 19 February 2014 at 4:37 pm | Permalink

    What tired crap this is.

    I don’t have any sympathy for cheque book journalism. This isn’t a freedom of the press issue, unless someone wants to argue that the press must be free to bribe their way to a story.

    The AFP argument that it is not a free speech issue is entirely correct.

    There’s simply no story here, apart from a few AFP coppers doing their duty, without delay or apology.

    I wish that there was more of it and, if the evidence exists, that they find it and go for the jugular.

    And I wish that the men and women of the press wrote less about their own industry and more about the world beyond their office doors.

    That includes Keane and Crikey. It’s boring.

  • 8
    TheFamousEccles
    Posted Wednesday, 19 February 2014 at 8:59 pm | Permalink

    John B - hear, hear!

  • 9
    AR
    Posted Thursday, 20 February 2014 at 12:26 pm | Permalink

    Interesting that they began to try to get Hicks’ payments then withdrew the case. Anyway, isn’t the fact that Blot et al have a salary “proceeds of crime”?

  • 10
    Salamander
    Posted Thursday, 20 February 2014 at 12:50 pm | Permalink

    Raids on media “to prevent them paying money”?? This sounds like part of the terrorist legislation. How come it can be applied elsewhere just as we feared?

  • 11
    AR
    Posted Thursday, 20 February 2014 at 1:06 pm | Permalink

    The Praetorian Guard - the sole job is to protect the ruler, not the ruled.

  • 12
    Brian
    Posted Sunday, 23 February 2014 at 4:50 pm | Permalink

    I have a great story about when I was in Thailand on leave from the ADF and got stabbed by a hooker because I was pissed….I will tell you the rest for free if you want!

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