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
(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
(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).