In this blog post Adam Webster examines the applicability of the Proceeds of Crime Act 2002 (Cth) and the Criminal Proceeds Confiscation Act 2002 (Qld) to Schapelle Corby should she be paid for a television interview while on parole in Indonesia. The post also contrasts the way in which the news of Corby’s release has been received in Indonesia and Australia.
Like seagulls descending upon an abandoned bag of hot chips, media outlets flocked to Bali when news broke that Schapelle Corby had been granted parole. There has been much speculation since Corby’s release on parole as to whether she would speak to the media and how much she might be paid for such an interview.
On a recent edition of Q&A both side of politics were asked about whether Corby could profit from an interview:
TONY JONES: Let’s hear from Mark Dreyfus, former Attorney-General, so you might know whether the Proceeds of Crime legislation actually works in this case, since she will be living in Bali?
MARK DREYFUS: I think most Australians take a pretty dim view of anyone profiting crime. That’s why we have Proceeds of Crime legislation and I’m not going to comment on the situation that Schapelle Corby is in because she is in Indonesia. She’s subject to Indonesian law.
TONY JONES: So, what, does that mean – you say you’re not going to comment on it but does what you are saying imply that she is not – she is beyond the reach of Australian law, this legislation won’t touch her, so the networks can give her as much money as they want, is that correct?
MARK DREYFUS: Schapelle Corby – Schapelle Corby is in Indonesia on parole for quite some time and I think everybody should be very conscious of the need for her to abide parole conditions and…
MALCOLM TURNBULL: … On this matter, I concur with my learned friend, the former Attorney-General.
Both Dreyfus and Turnbull avoided answering the question that I will examine in this post: if Corby is paid for an interview, does the Proceeds of Crime Act 2002 (Cth) apply to her and could the Commonwealth seek an order that it be paid any profits made from the interview?
Let us examine the Proceeds of Crime Act 2002 (Cth) in detail.
Literary Proceeds Orders
Section 152(2) of Proceeds of Crime Act 2002 (Cth) allows the court to
‘make an order requiring a person to pay an amount to the Commonwealth if … the court is satisfied that the person has committed a foreign indictable offence … and the court is satisfied that the person has derived literary proceeds in relation to the offence.’
The person need not have been convicted of the offence, but the court must merely be satisfied that the offence was committed. The wording of section 152(2) raises two definitional questions: (1) what are ‘literary proceeds’? and (2) what is a ‘foreign indictable offence’? Fortunately, both of these terms are defined elsewhere within the Act.
A ‘Foreign Indictable Offence’
Paraphrasing s 337A of the Act, a ‘foreign indictable offence’ is defined in the following way:
‘If an application is made …. in relation to conduct that constituted an offence against a law of a foreign country, and if the conduct had occurred in Australia at the [relevant] time … 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… the conduct is treated as having constituted a foreign indictable offence.’
The relevant question in relation to Corby is whether, had the offending occurred in Australia, it would have constituted an offence punishable by at least 12 months imprisonment. It is difficult to know exactly what Corby would have been charged with had the offending occurred in Australia, but in all likelihood the offending would have been an offence punishable by at least 12 months imprisonment: see, for example s 233 of the Customs Act 1901 (Cth) that deals with the importation of prohibited imports (which includes drugs). Therefore Corby’s offending is most likely a ‘foreign indictable offence’.
Would the money that Corby makes from a television interview constitute ‘literary proceeds’ as defined in the Act? The term ‘literary proceeds’ is broader than proceeds made from what might traditionally be thought of as ‘literary works’ (such as books). The Act defines ‘literary proceeds’ as:
Commercial exploitation is not just the writing of literary works, but includes ‘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’: see s 153 of the Act. The payment for a television interview would, therefore, constitute ‘literary proceeds’ (subject to the exception in s 153(3A) outlined below).
There have been some suggestions that one way to circumvent the Act is to have any payment for an interview paid into the account of a family member. However, ‘deriving’ a benefit includes a benefit to a third person at the direction of the person. Indirect ‘benefits’ may also be caught by the Act: see ss 153(4) and 336.
Critically, there is an exception to the definition of literary proceeds (see s 153(3A)), which states:
It appears that, given Corby’s offence is a ‘foreign indictable offence’, there is a question whether any money she makes from an interview in Indonesia would be considered literary proceeds. The question is whether the benefit is ‘derived in Australia’. Keane JA noted that ‘derived in Australia’ is ‘apt to catch any benefits sourced from, or received in, Australia.’ (see here). It may therefore depend on how the payment is made and the origins of the payment as to whether any payment for an interview constitutes literary proceeds. If the benefit is derived from outside Australia, then it would be beyond the reach of the Australian courts. Perhaps the presence of s 153(3A) and the question surrounding what is meant by ‘derived in Australia’ explains Dreyfus and Turnbull’s reluctance to answer the question on Q&A.
However, even if the Act allowed for a court to make a ‘literary proceeds order’ that any money paid to Corby for a television interview filmed in Indonesia be paid to the Commonwealth, there might be practical difficulties in serving Corby with the application or allowing her to appear at the hearing of the application as Corby is still on parole in Indonesia. Perhaps this is one reason for the exception in s 153(3A).
If the object of the Act is to prevent media outlets paying large sums of money to criminals who have committed criminal acts overseas and still reside overseas, there may be an alternative way of achieving this end: regulate the corporation.
Section 51(xx) of the Constitution: The Corporations Power
The outrage that Corby might be paid for a television interview seemed (at least from Channel 7 media personality, David Koch) to be directed towards Channel 7 and the media outlets rather than at Corby.
If the Proceeds of Crime Act 2002 (Cth) does not prevent Corby from doing an interview with a media outlet, and the Commonwealth Government wanted to prevent such interviews occurring, there is a simple fix: regulate the corporation. Section 51(xx) of the Constitution permits the Commonwealth to regulate ‘trading or financial corporations formed within the limits of the Commonwealth’. It would not be difficult for the Commonwealth to legislate to prohibit a corporation from paying a person convicted of a foreign criminal offence for an interview.
Criminal Proceeds Confiscation Act 2002 (Qld)
Queensland Premier, Campbell Newman has stated that he will be asking Attorney-General Jarrod Bleijie to investigate whether the Criminal Proceeds Confiscation Act 2002 (Qld) would apply to any profit that Corby makes from a television interview. While the Queensland legislation has extraterritorial operation (see s 5A), the Act deals with confiscating the proceeds derived from criminal offending rather than the money paid to a convicted criminal for an interview. In Corby’s case, this might allow the Queensland Government to confiscate any proceeds that Corby made from importing drugs into Indonesia, but the legislation does not deal with convicted criminals making money from their fame and notoriety; that is left to the Commonwealth legislation.
Regard for the Indonesian Justice System
The focus in Australia has been on whether Corby will be paid for a television interview and whether the Queensland or Commonwealth Governments could seek an order that any profit from that interview be paid to the Government(s).
This can be contrasted with the reaction within Indonesia to Corby’s release on parole. In Indonesia, Corby’s parole has been viewed by some a threat to the ‘safety of the nation’ and is seen by others as the Indonesian Government ‘bowing to pressure from Australia’. Corby’s release has not been reported favourably in the Indonesian media (see here). It is seen as a softening of the tough line that the nation takes on drugs.
We must remember that Corby is on parole from an Indonesian prison and subject to Indonesian law. Indonesian parole authorities were not so worried whether Corby would be paid for the interview, but whether her parole conditions allowed her to could speak at all. As was reported in the Sydney Morning Herald, the primary concern of the Indonesian parole authority was that Corby might be critical of Indonesian law enforcement or corrections:
A spokesman for the Indonesian Corrections Department, Ayub Suratman, said the interview was still ”forbidden” but if it was to take place parole officers ”will have to be there”. ”There are concerns that she will say something subjective that will discredit corrections, or Indonesia. But if it’s just a regular interview, it should be OK.”
These are understandable concerns. At the end of the day, it will be the Indonesian authorities who have the final say on whether an interview can go ahead. Corby is on parole. She is subject to parole conditions set down by the Indonesian authorities. A breach of her parole conditions could result in her being returned to prison.
The way this issue has played out in both countries has been very different and reflects the legal, political and social differences of the two nations.
Adam Webster is a Lecturer at the Adelaide Law School researching in the area of public law.