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
"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.