Demolishing Ruddock and Merritt's "straw man" about Hicks

I can no longer maintain my rage.

Once again the media has allowed Phillip Ruddock to spew nonsense, Chris Merritt picked it up yesterday in his opinion piece in the Australian, and no-one has bothered to check the facts or apply any critical analysis.

On Tuesday, the Commonwealth DPP issued a press release in which the CDPP explained the reasons for the decision to discontinue the application to recover what is reported to be $10,000 earned by David Hicks from the publication of his memoire Guantanamo: My Journey.  You will note that there is not a jot or tittle of any suggestion that this decision was a result of any amendments made to the Proceeds of Crime Act 2002. The decision relates to the questionable admissibility of certain admissions and other material previously relied upon by the CDPP, in conjunction with further evidence that had been provided to the CDPP as to the circumstances in which those admissions and other evidence had been obtained.

Nonetheless Ruddock, and then Merritt in a ridiculous diatribe, blamed the decision on the Government for amending the Proceeds of Crimes Act 2002 in 2010.

The section in question is section 337A.  In the form in which it was enacted in 2004 by the Anti-Terrorism Act under the stewardship of then Attorney-General, Philip Ruddock, it read as follows:

337A Meaning of foreign indictable offence

(1)  If:

(a) an application (the current application ) is made for a ^* restraining order or ^* confiscation order in relation to conduct that constituted an offence against a law of a foreign country; and 


(b) 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;

then, for the purposes of the current application, the conduct is treated as having constituted a foreign indictable offence at all relevant times.

Example: X commits an offence against a law of a foreign country at a time when the conduct is not an offence against Australian law. X then derives literary proceeds in relation to the offence and transfers the proceeds to Australia. After the proceeds are transferred, a new Commonwealth offence is created that applies to the type of conduct concerned. An application is then made for a literary proceeds order. For the purposes of the proceedings for that order, the original conduct is treated as having constituted a foreign indictable offence at all relevant times and accordingly an order can be made in respect of those proceeds.

(2)  The testing time for the current application is:

(a) if the current application is an application for a ^* restraining order—the time when the current application was made; or


(b) if the current application is an application for a ^* confiscation order (other than a ^* literary proceeds order) in relation to a restraining order—the time when the application for the restraining order was made; or


(c) if: 


(i) the current application is an application for a literary proceeds order; and 


(ii) an earlier restraining order has been made in respect of the same offence—the time when the application was made for that earlier restraining order; or 


(d) if the current application is an application for a literary proceeds order but paragraph (c) does not apply—the time when the current application was made.

(3) In this section:

"offence against a law of a foreign country" includes an offence triable by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism".

What happened in 2010 that inflamed Ruddock was that as part of a review of the Proceeds of Crimes Act 2002, subsection 337A(3) was repealed.  According to the Explanatory Memorandum (in which, contrary to Ruddock's assertion, the proposed repeal was clearly referred to), this was because on 29 June 2006 the US Supreme Court in Hamdan v Rumsfeld found the military commissions established by the military order.  It was therefore appropriate that the reference to the military commissions be removed.

The Liberal Party voted in favour of the amending legislation.  Not one Liberal Party MP or Senator, and not one Liberal Party member of the Senate’s Legal and Constitutional Affairs Committee which reported on the proposed amendments suggested that subsection 337A(3) should not be repealed.  Nor did they suggest that some other provision should be included in its place.  No doubt this was because, by the Military Commissions Act of 2006. the US Congress had re-enacted as offences against the domestic law of the United States, the offences previously being tried pursuant to the Military Order.  By the time of the 2010 amendments to the Proceeds of Crimes Act 2002 there was no doubt that the conduct alleged against David Hicks, if that conduct could be proved, “constituted an offence against a law of a foreign country”. Subsection 337A(3), whether in its original form or in any amended form, did not alter that position.

According to Merritt, “without an updated Hicks provision, the act [sic] left the decision to recognise this man's conviction to the courts.”  As is obvious, subsection 337A(3) says nothing about recognising a conviction, whether of the original (now invalid) military commission or any other body.  It talks about what constitutes a relevant offence, not how to go about proving the relevant offence has been committed.  It is not clear what the origins are of the assertion by Merritt that the US only agreed to the plea deal after examining the Proceeds of Crimes Act 2002, and in particular subsection 337A(3).  But unless it is thought that the Australian Parliament should somehow restrict its sovereignty in deference to the desires of the US Government, then any decision by US prosecutors based upon the then current provisions of the Proceeds of Crime Act 2002 was always conditional.

So, back to the CDPP’s decision.  As is evident from the form of section 337A, a necessary element is (and always has been) that there be “conduct that constituted an offence against a law of a foreign country.”  It is, and always has been, necessary to prove the conduct, and to prove that the conduct constituted an offence.  As is evident from the CDPP’s press release, the CDPP was not satisfied that the available admissible evidence was sufficient to make out those elements necessary to establish that there was a “foreign indictable offence” for the purposes of the Act.  And that insufficiency of evidence has nothing to do with the repeal of subsection 337A(3).  

Schleck: a primer on the cycling anti-doping code

As there has been a lot of misinformation in today’s press following the revelations that Frank Schleck had tested positive for a diuretic during this year’s Tour de France, I thought I would put together this little primer on the anti-doping regulations that apply to Le Tour.

Firstly, what is a diuretic? Basically, it is a drug that is used to increase the excretion of water from the human body by increasing the rate of urination.  While it is not in itself performance-enhancing, their presence on the list of prohibited substances published by the World Anti-Doping Agency (WADA) is because of their use as a so-called masking agent. In essence, because a diuretic increases the amount of urine produced, it effectively dilutes the quantity of other banned performance-enhancing substances, making them more difficult to detect.  Its other main use is in sports where rapid weight loss is important, such as sports divided into weight categories such as boxing and wrestling).

The diuretic in question is xipamide, a diuretic so old and uncommon that it is not even listed on the WADA list of prohibited substances.  However, it is certainly included in the catch-all “other substances with a similar chemical structure or similar biological effect” to those that are specifically listed.

The anti-doping regime in cycling is governed by the Cycling Regulations of the Union Cycliste Internationale (UCI) (International Cycling Union), which is in effect the UCI’s implementation of the World Anti-Doping Code.  It expressly adopts and incorporates the WADA Prohibited List.  The primary anti-doping rule violation is contained in Article 21.1, which lists as the first anti-doping rule violation: “the presence of a prohibited substance … in a rider’s bodily specimen.”  It continues on to provide that riders are responsible for the presence of any prohibited substance found to be present in their bodily specimens, and accordingly it is not necessary that any intent, fault, negligence or knowing use be demonstrated.  Mere presence is in and of itself a violation.

So, assuming that Schleck’s B-Sample tests positive for xipamide then prima facie an anti-doping rule violation will have been made out. Mere presence, of any quantity of a diuretic, is “sufficient proof” of the violation (diuretics are a class of substance for which a therapeutic use exemption can be obtained in advance, but that is not a relevant consideration in Schleck’s case).

Article 293 provides that the period of ineligibility for a first anti-doping rule violation under Article 21.1 shall be 2 years.  This is subject to a number of provisions that allow for the elimination or reduction of that penalty provided certain conditions are met.

The first of these is Article 295 which provides for the elimination or reduction of the period of ineligibility for “specified substances” under specific circumstances.  Diuretics are, for the purposes of the Prohibited List, a “specified substance” (“specified substances” are generally substances that are commonly used for medical purposes and have only minor performance-enhancing attributes at therapeutic levels, such as asthma medications, or are commonly encountered as recreational drugs). If a rider can establish how a specified substance entered his body, and establish that it was not intended to enhance the rider’s performance or mask the use of a performance-enhancing substance, then the 2 years may be replaced with anything from a minimum of a reprimand with no period of ineligibility, up to a maximum of the usual 2 year period of ineligibility.  In addition, the rider must produce corroborating evidence in addition to his word which establishes to the comfortable satisfaction of the hearing panel that there was an absence of intent to enhance performance or mask other substances.

The difficulty Schleck will face in satisfying these conditions is obvious.  Absent a confession from the perpetrator, it will be difficult to establish what seems to Schleck’s explanation for the adverse analytical result, ie that he was poisoned or sabotaged.  This is not a case of a rider being able to prove he consumed a foodstuff (most ingeniously, the attempts to blame contaminated meat) or other product such as a supplement that, unknown to him at the time, happened to contain a prohibited substance, which is the usual category of case in which this provision is invoked.  The issue of corroboration will also be difficult.  Corroboration is usually established by proving there was a legitimate, non-performance-enhancing purpose of taking the substance, such as for medical reasons.

Other provisions that allow for a reduction or elimination of the period of ineligibility include Article 296, which allows for elimination where the rider establishes he bears “no fault or negligence”.  Similarly, Article 297 allows for a reduction in the period of ineligibility down to a minimum of 1 year (for a first offence) where he bears “no significant fault or negligence”.  In each case the rider must still establish how the prohibited substance entered his body. 

None of what has been set out above is in any way intended to pre-empt the outcome of the Schleck case itself.  The process of testing of the B-sample is yet to occur, in order to establish the anti-doping rule violation itself.  Schleck still has the opportunity to prove his claims that he was poisoned.  However, the suggestion that has appeared in today’s media that Schleck “has a good chance of proving his innocence” would seem overly optimistic.  

LexisNexis Red pricing is a disgrace

In my Preview of LexisNexis Red I concluded by asking “how much would you be prepared to pay on top of your loose leaf subscription for this product” and answered it by saying: “not very much.”

It appears LexisNexis has other ideas.

As a barrister I get access to a special Bar Package of online services from LexisNexis which includes access to Ritchie’s Uniform Civil Procedure Rules.  For this privilege I pay $6,300 per year (paid as monthly instalments of $525).  On top of that, I pay for a subscription to the hard copy of Ritchie’s.  Because I am an online subscriber, I get a 50% discount on the usual subscription price of $2,145, or $1,072.50.

LexisNexis have now provided me with their pricing for Ritchie’s on their Red platform.  If I were to ignore my own advice and pay for a licence for Ritchie’s on LexisNexis Red, it will cost me another $1,072.50.  That only gets me a licence for Ritchie’s on the iPad.  If I want to get a licence for LexisNexis Red on a computer (Windows only) then it will cost another $1,072.50.

Just exactly what the purpose of purchasing a licence for Ritchie’s on LexisNexis Red for PC is unclear.  Most products with a desktop and iPad version have useful synchronisation capability.  Not so with LexisNexis Red, at least not yet.  But when that capability is added, should you really have to pay for an additional licence to utilise it?

Given that what has been bowled-up is little more than a glorified e-reader, and not a very good one at that, it is difficult to see how LexisNexis can expect people to pay such exorbitant amounts for their digital products.  Given that both their eBooks and now their Red products are precisely the same content as the hard copy, the pricing can only be justified by functionality. 

As with their eBooks, the functionality of Red does not justify the exorbitant licence fee: and it is frankly a disgrace to charge it twice.

PS: the Product Manager responsible for Red has commented on my Preview.