Gagging The Victim

 

The gagging of Schapelle Corby, breaching her human right of free speech, was the culmination of a process involving politicians, the AFP and the Australian media. It was driven by fear: fear that she would use her platform to expose the material published by The Expendable Project, which proves corruption and malversation amongst all these parties.

This website logs the many interventions made, as the Australian establishment sought to create pressure, not only within its own borders, but in Australia. The vehicle used was to be the myth of an enormous payment for an interview, a payment which never existed.

Ultimately, the perpetrators of this campaign were successful, in deluding the public, and in provoking the requisite response from Jakarta.

On the very day upon which Schapelle Corby was released, Michael Bachelard, Indonesia Correspondent for Fairfax Media, lengthened his own hostile track record by reporting that "Schapelle Corby's sister Mercedes has separated from her husband, Wayan, but did not inform Bali authorities, even though he is the drug smuggler's guarantor" (10th Feb)

He picked up local gossip, and not only reported it as fact, but scuttled off to the Indonesian Corrections Board, with what, on the face of it, could have severely jeopardised Schapelle Corby's release. The Corrections Board broadly told him to go away.

But Bachelard, colleague of the already discredited Eamonn Duff, was only just warming to the task.

Fairfax Media's entertainment reporter, Michael Lallo, had set the scene by inventing ridiculous offers, which were to be mysteriously made to Schapelle Corby for her first interview, with figures of the order of $3 million dollars being speculated. This was utter fiction, but its impact, in terms of public perception and envy, was clear.

Bachelard, however, used this ruthlessly, parading and flaunting the idea endlessly before the Indonesians, and apparently, probing for a reaction at every turn.

This was not the reporting of events, it was pro-actively provoking and agitating. It was using a Fairfax Media smear to create and build issues at Schapelle Corby's risk and potential expense.

Report after report was filed, and published, often many on the same day.

Everything was to be embellished. Her secure accommodation, away from the goldfish bowl the Australian media had wanted Schapelle Corby to be placed in, was also thrown into Indonesian faces "Schapelle Corby released from Kerobokan prison on parole arrives at luxury spa" (10th Feb)

Bachelard continued to fan the flames, with headlines such as "Bali parole board head visits Schapelle Corby as anger over interview grows" (12th Feb)

Make was no mistake about this. There was no payment for an interview. Channel 7 stated this clearly. Mercedes Corby repeated it. No money changed hands. This was intended to be an interview to enable Schapelle Corby, finally, to speak freely... to expose the truth.

Fairfax Media had, itself, invented the huge payment myth, and Bachelard had employed it endlessly, creating misplaced anger and envy in the process, which finally generated a political response.
Whilst dozens of armed AFP officers in Australia were, with Canberra’s approval, raiding and intimidating staff in Channel 7’s offices, and seizing everything in sight from Mercedes Corby’s lawyer, in Indonesia the reaction was predictable.

Political Intervention

There was a barrage of adverse and derisive commentary from many political corners. Tony Abbott the Prime Minister of Australia, Campbell Newman the Primer of Queensland, Joe Hockey the Federal Treasurer, Foreign Minister Julie Bishop, all weighed in with opinion that would ultimately bear consequence for Schapelle Corby herself. Threats to her parole status eventually emerged from Jakarta, along with an instruction preventing her from speaking to the media: in practical terms, a gagging order.

Following Schapelle Corby's release on parole, the hostility of the Australian establishment continued unabated.

It started with speculation and sheer fantasy:

Bidding war for Schapelle Corby's first post-jail interview

Date January 22, 2014

By Michael Lallo, entertainment reporter for The Age.





 EXCLUSIVE

 

The bidding war has begun over Schapelle Corby's first post-jail interview. Photo: Getty Images

Australia's commercial TV channels are locked in a fierce battle for the first post-jail interview with Schapelle Corby – but her family's displeasure with past news coverage and a forthcoming telemovie threatens to de-rail each network's bid.

A source from one station says "everyone will open their chequebooks" for what will "obviously be the interview of the decade".

The Australian public's intense interest in the case – in which Corby was jailed in 2004 after being caught smuggling marijuana into Bali – has led network executives to forecast a huge audience for the broadcast. Most expect it to out-rate previous high-profile interviews, including those with landslide survivor Stuart Diver and mine collapse victims Brant Webb and Todd Russell.

The pair were paid $2.6 million by Channel Nine's then-owner PBL, prompting the agent who negotiated that deal to predict Corby could net almost $3 million. Yet one station insider insists that free-to-air channels "simply don't pay that kind of money any more", suggesting a likely fee around $1 million. (Proceeds of Crime laws may prevent Corby from receiving the money directly.)

With the 36-year-old edging closer to release – having obtained a new Australian passport this week and confirmation she can serve her parole in Indonesia – the networks are now racing to sign her.

But for the prisoner and her family, the highest price is no guarantee of a deal. According to one TV producer who has dealt with them, they have "long memories" and are wary of accepting offers from those they perceive to have burnt them – or intend to burn them.

Traditionally, Seven has been the Corbys' network-non-grata. In 2008, Schapelle's sister Mercedes received a large payout after a jury found she had been defamed by Today Tonight.

This worked to Nine's advantage until the station commissioned a telemovie "inspired" by the book Sins of the Father, written by Fairfax journalist Eamonn Duff. According to one Nine staffer, this displeased the Corbys, who dislike the book. Despite the fact that Nine's news and drama divisions operate independently, those close to negotiations say it could be enough to swing the deal in Seven's favour.

A spokesman for FremantleMedia, producers of the soon-to-screen telemovie, says Duff's book is just "one of many source materials used in the development of the script", which is an "original work".

"I was unaware the family had publicly responded to the telemovie," the spokesman says. "If they have, it certainly had no impact on the development of the script."

Naturally, Seven is capitalising on the family's rumoured nervousness about Nine's movie – and stressing that the senior staff responsible for the Today Tonight drama of 2008 have since left. So far, the strategy appears to be working. Schapelle's mother, Rosleigh Rose, even allowed the network to fly her to Bali recently.

Indeed, Nine now considers itself the underdog, according to multiple sources, despite promising to match any offer from Seven.

The dark horse in this bidding war is Channel Ten, which hopes to reverse its ratings slump, in part, by reinvigorating its news and current affairs offering. Securing the exclusive Corby interview would be a major coup, and incoming news and current affairs chief Peter Meakin is said to be keen to make an offer.

Yet with Seven enforcing a "non-compete" clause after Ten poached him last year, there's nothing he can do until he starts in February. In the meantime, it's up to other Ten executives to chase the deal.

Of course, both Seven and Nine have been reminding the Corbys that Meakin was running Seven's news and current affairs division when Today Tonight defamed Mercedes. The fact that Ten's rivals have deeper pockets does not help its chances.

And whichever network gets the interview will have to walk a fine line. Those familiar with Indonesia's legal system say the courts are unlikely to impose any gag orders on Corby during her parole, giving the interviewer free rein. Viewers will therefore expect rigorous questions but a too-tough stance could be seen as exploiting her. Having suffered severe depression during her imprisonment – and if Corby's mental state is as bad as reported – the interview could be difficult to conduct and may not occur until some time after her release.

All three networks declined to comment but a source from one says the interview is not considered "make or break" for any station. Even if the cost and content is shared across multiple programs, or with a print outlet, it will fill a few hours' airtime at most. While this helps a network's "brand", the source explains, viewing habits tend to return to normal within 48 hours.

But the interview itself will be a boon for the winning station.

"They could have [Corby] reciting the bus timetable and the whole country will still tune in," says another network staffer. "The curiosity factor is enormous. No matter what you think of her or the case, you'll want to see what she looks like and hear about prison and all the details. Everyone will watch."

- with Michael Bachelard

ATTORNEY-GENERAL Jarrod Bleijie will take steps to block convicted drug smuggler Schapelle Corby from profiting through a $2 million deal with Channel Seven to tell her story.

Queensland Premier Campbell Newman today said he had asked Mr Bleijie to investigate whether state laws to block criminals profiting from their crimes could be applied to the Corby interview deal.

• Kelmeny Fraser
• The Courier-Mail
• February 12, 2014 1:03PM

 

“I am deeply concerned, in fact I’m dismayed that a convicted drug criminal has benefited it appears from a criminal activity and I am asking the Attorney-General to see whether the Queensland legislation, the proceeds of crime legislation, may have some application,” Mr Newman said.

“What we are seeing here is a convicted criminal apparently benefiting from the criminal act,” he said.

“I have the greatest of respect for other countries’ justice systems and we just need to recognise that there was a trial in Indonesia, she was appropriately convicted, she went to jail, and now it appears she is benefiting from this act.

“I don’t think it is very satisfactory whether she can benefit from that.”

Corby left Indonesia’s Kerobokan Jail with her face well hidden from the media throng this week and reportedly striking a $2 million interview deal with Channel Seven.

Campbell Newman could stop Schapelle Corby being paid for interview

INDONESIAN authorities have paid Schapelle Corby an unscheduled visit. 

 

Corby’s parole team visited her at the Sentosa Seminyak resort where she is staying, where they spoke to her, sister Mercedes and brother-in-law Wayan Widyartha.

The parole team later said Corby herself had seemed tired during their meeting and they talked mainly to Mercedes and to Widyartha.

The visit comes as critics voice their disapproval of Corby’s accommodation and reported $2 million interview deal with the Seven Network.

The governor of Kerobokan Prison, Farid Junaedi, told the Denpost newspaper that Corby would be “stupid” to do such an interview.

“On parole, she is still considered as a prisoner, though she’s free and outside,” he was quoted as saying.

“I’ve made it clear to the family that if she’s willing to be interviewed, that would be stupid of her.”

Queensland Premier Campbell Newman has also warned that his government would seek to prevent Corby from profiting from her situation.

Attorney-General Jarrod Bleijie

Newman said he would be asking his Attorney-General Jarrod Bleijie if payments to Corby could be stopped under Queensland’s proceeds of crime laws.

“I am deeply concerned, in fact I am dismayed, that a convicted drug criminal has benefited it appears from her criminal activity,’’ Mr Newman told reporters in Brisbane today.

Mr Newman said he respected Indonesia’s justice system and its decision to convict Corby.

“I just think we need to recognise there was a trial in Indonesia, she was appropriately convicted, she went to jail and now it appears she’s benefiting from this act and I don’t think it’s very satisfactory.

“So we will look and see whether that Queensland legislation has any application.’’

His comments come after Channel Seven personalities and senior government figures voiced their opposition to the television network’s decision to pay Corby $2 million to tell her story.

Treasurer Joe Hockey and Seven star David Koch are among those who have expressed their distaste over Corby’s possible windfall.

The growing anger comes as details of the convicted drug smuggler’s parole conditions have emerged.

Corby’s parole conditions were laid down and originally signed in August last year.

In that letter, obtained by News Corp Australia, Corby made a series of pledges including to not commit any criminal acts, to not use or distribute any kind of narcotics and to report to the parole authority every month.

Corby also agreed to receive guidance from the parole team and to dress modestly and neatly for the officers.

The Prime Minister of Australia was pressing for Schapelle Corby to be silenced even before she was released on parole

 Schapelle Corby should not sell her story, Tony Abbott suggests  

TONY Abbott has issued a veiled caution to convicted drug smuggler Schapelle Corby not to profit by selling the story of her nine years in jail. 

AAP 

February 06, 2014 7:47AM

 
Corby could learn as early as tomorrow whether her bid for parole has been successful, opening the way for her release from Bali's Kerobokan prison.

If it's approved, Corby, 36, will serve her parole in the Kuta home of her sister Mercedes and her husband Wayan Widyartha.

There is speculation Corby could be paid millions of dollars for her first tell-all interview.

But the Prime Minister suggested he does not think that should happen.

"The old principle is crime should not pay,'' Mr Abbott told Fairfax Radio.

"But I don't want to say anything on this.

"I wouldn't want to prejudice the outcomes of any discussions that are going on about her tenure.''
He said Corby's case was a high-profile consular case and the ``less public comment by politicians, the better''.

Indonesia's Justice Minister Amir Syamsuddin

Indonesia's Justice Minister Amir Syamsuddin said last night he would make a decision tomorrow on Corby's bid for parole.

"I will finalise all on Friday,'' Mr Syamsuddin said.

"All will be processed equally; no special treatment whatsoever.''

He said there were 1700 applications for parole before him and stressed the Australian's case would be treated the same as the others.

Mr Syamsuddin has already said publicly he can see no reason why Corby's parole bid should be rejected.

Her case was heard in Jakarta last week, but it's not known whether the parole board's recommendation to Mr Syamsuddin was in favour of parole.

The beauty student was 27 when she was caught in 2004 attempting to smuggle more than four kilograms of marijuana into Bali in a bodyboard bag.

She has always maintained her innocence.

Hatchet man Queensland’s attorney general, Jarrod Bleijie,

 

Queensland’s attorney general, Jarrod Bleijie, conceded on Friday that the Queensland state government would be powerless to confiscate any money Corby earned from selling her story.

“Following legal advice, the state is not in a position to pursue the matter further but we would provide any support to the federal government if it was able and chose to do so,” Bleijie said.

Australian Treasurer Joe Hockey

Controversy over Australian Corby's TV interview deal

In making this political intervention, what "message" was Hockey REALLY worried about? The message that Australian politicians had buried the truth of her innocence, as proven by The Expendable Project?

 

Australian Treasurer Joe Hockey

Prime Minister Tony Abbott has previously made clear that Corby should not be allowed to profit while on Tuesday Australian Treasurer Joe Hockey tweeted that it would send "all the wrong messages".

Additional reading: 
Joe Hockey backs police after raids on Seven over Schapelle Corby interview

Foreign Minister Julie Bishop

If “These are matters independent of government.’’ 
why was Julie Bishop intervening in such a public way?

Foreign Minister Julie Bishop

When asked last Friday whether Corby should be allowed to sell her story to the media, Foreign Minister Julie Bishop said the government believed in the principle that people should not profit from crime.

“But whether or not these circumstances arise, whether or not action is taken, will be a matter for Australian Federal Police and the Director of Public Prosecutions,’’ she told reporters in Adelaide.

“These are matters independent of government.’’

But Prime Minister Tony Abbott made a stronger stance, telling Fairfax Radio last Thursday that “crime should not pay”.

NICK XENOPHON "BUSTED"

 

15/5/2014

 
BUSTED!

SENATE COMMITTEE SCATHING OF AFP
SEVEN WEST RAID

Independent Senator for South Australia, Nick Xenophon, has called for urgent reforms to the 
Proceeds of Crime Act 2002 after a Senate committee inquiry strongly criticised the AFP’s raids on 
Seven West Media DATE under the provisions of the Act. He has also called for legislative 
protections for media organisations as part of law enforcement investigations, similar to the US
 protocols announced last year.


The AFP conducted raids on Seven West’s Sydney offices earlier this year, using warrants obtained
under the Act, in a search for documents relating to an alleged financial arrangement between Seven
West and representatives of Schapelle Corby. Under the Act, it is not an offence to pay for an
interview with a convicted offender, but the AFP may use civil provisions to try and reclaim the funds 
so that the offender does not profit from their notoriety.


The AFP, however, used warrants claiming that a criminal offence had been committed. These
  warrants were later quashed by a Federal Court judge following an appeal by Seven West Media. The
 Senate Legal and Constitutional Affairs References Committee found that the AFP’s investigative
 process was ‘unreasonable and caused unnecessary damage’ to Seven West’s reputation, and 
questioned the AFP’s ‘competencies, training and oversight’ of such matters.


“The AFP has abused and misused its powers and caused significant damage to the reputation of a
maj or media organisation, as well an egregious waste of taxpayer money,” Nick said. “If this is how
the AFP acts towards Seven West, how are they treating smaller companies and individuals?”


Senator Xenophon said the civil literary proceeds provisions should be removed from the Proceeds of
Crime Act completely, and be established in their own act.


“The AFP has made it very clear they don’t have proper protocols in place for dealing with literary 
proceeds matters,” Nick said. “The Act needs to be amended to remove any room for error, so it can’t
be misused or abused.”


“This fiasco will end up costing taxpayers well over $1 million,” Nick said. “Imagine if the AFP spent its 
resources and money on going after the bad guys, not on this wild goose chase.”


Senator Xenophon also said the inquiry raised significant concerns about the lack of protection for
 journalists and their sources when media organisations were investigated.


“Lawyers have the option of legal professional privilege to quarantine certain information from 
investigations,” Nick said. “Journalists need to have the same kind of requirements so they can 
protect their sources.”


“We need to follow the example of US Attorney-General Eric Holder, who last year set out important 
protocols to protect journalists and media organisations in such matters.”
 

Schapelle Corby raid: AFP admits it 'jumped the gun' over Channel Seven search warrant

7th April 2014
ABC

The Australian Federal Police (AFP) has admitted it "jumped the gun" when it applied for a search warrant on the Seven Network.

The AFP raided the offices in February to determine whether convicted drug smuggler Schapelle Corby had sold her story to the network.

At the time, officers said the raids were required to obtain documents relating to the matter which were not provided to investigators by Channel Seven.

Last month, the Federal Court ruled the search warrants invalid and the AFP has since apologised and dropped the proceeds of crime investigation.

Assistant Commissioner Ramzi Jabbour has told a Senate hearing, officers applied for the warrant prematurely.

"I make no excuses for the actions of some of our officers," he said.

"In my view, this was less than optimal whereby we have obtained - gone to a magistrate to obtain - a warrant before the expiration of the extended period of time provided to Channel Seven to comply with the production order."

The AFP has previously said word processing errors were to blame for mistakes in the original warrant and a review of the matter would be conducted.

Corby left Bali's notorious Kerobokan prison on parole in February, after serving nine years of a 20-year sentence for drug smuggling.

Schapelle Corby: Federal Court quashes warrants for AFP raid on Seven

4th April 2014
ABC

The Federal Court has quashed warrants obtained by the Australian Federal Police (AFP) during its Schapelle Corby proceeds of crime investigation.

The warrants were used to search the Sydney offices of Channel Seven and its lawyers on February 18, in a quest to find out whether Corby had sold her story.

But the AFP later apologised for a document attached to the warrants, which wrongly implied an offence may have been committed by those named within.

It has since dropped the investigation, and no longer holds documents and computers seized during the searches.

The Federal Court has now ruled the warrants invalid.

It will hear arguments about costs and the return of the property at a later date.

Corby left Bali's notorious Kerobokan prison on February 10, after serving nine years of a 20-year sentence for drug smuggling.

Channel Seven said it agreed to cover costs for Corby's accommodation, transport and security after she was released.

The TV network also said it had paid her sister Mercedes about $20,000 to help arrange an interview with Corby.

That was before Indonesian authorities stated publicly that any paid interview would be a serious breach of Corby's parole conditions and could land her back in jail.

Instead, Mercedes Corby was interviewed by Channel Seven and later apologised for comments she made suggesting her sister had been "set up", which sparked anger from Indonesian authorities.

Page 1. Senate Standing Committee on Legal and Constitutional Affairs - Submission by Seven West Media

Senate Standing Committee on Legal and Constitutional Affairs
Inquiry into the current investigative processes and powers of the Australian
Federal Police in relation to non-criminal matters

Submission by Seven West Media

28 March 2014

EXECUTIVE SUMMARY

• The Australian Federal Police executed search warrants on the premises of Seven
West Media and its lawyers Addisons on 18 March 2014.

• This has resulted in significant damage to the reputation of Seven West Media, its
parent company Seven Group Holdings, their legal representatives and various
individuals employed by these companies.

• These warrants have subsequently been quashed in the Federal Court and the
AFP has abandoned its investigation into Seven West Media.

• Her Honour Justice Jagot found that the AFP materially misled the Magistrates
who were asked to issue the warrants.

• The warrants were carried out in an extremely aggressive manner, using over 30
armed police officers from the Serious and Organised Crime division. The raids
caused distress to Seven West Media employees and appear in many aspects to
have been carried out not in accordance with the AFP Code of Conduct.

• The matter being investigated by the AFP was whether an exclusive media deal
had been entered into between Seven West Media and Schapelle Corby. No such
deal has ever existed.

• This is not a criminal matter. Even if there had been an agreement to pay
Schapelle Corby for her story, there was never, and could not be, any allegation or
suspicion that a criminal offence had been committed by Seven West Media or any
other person in relation to such an agreement.

• The AFP investigation was based solely on media speculation. No requests were
ever made of Seven by the AFP as to whether such a deal existed.

• The AFP did not consider use of any alternative means to address its concerns
that money might leave this jurisdiction, such as seeking undertakings from Seven
West Media and its related entities.

• Serious questions arise in relation to the proper use of public resources in this
matter.

• The powers of the AFP in relation to non-criminal matters are inconsistent with due
process and should be consistent with comparable search powers available to civil
litigants.

• There is a lack of adequate protections and protocols around journalists sources
and confidential material in relation to material obtained through a search warrant.

This should be rectified.

~~~~~~~~~~~~~~~~~~~~~~~~~

Senate Standing Committee on Legal and Constitutional Affairs
Inquiry into the current investigative processes and powers of the Australian
Federal Police in relation to non-criminal matters
Introduction

Seven West Media is the leading, listed national multi-platform media business based in
Australia. We comprise the Seven Network, Australia’s highest rating television network;
Pacific Magazines, the country’s second largest magazine group by readership; Yahoo!7,
one of the nation’s most successful internet platforms, as well as Western Australia’s
leading newspaper, the West Australian and associated WA regional newspapers and
radio stations.

Seven West Media welcomes this opportunity to participate in the Senate Inquiry into the
current investigative processes and powers of the Australian Federal Police in relation to
non-criminal matters (Inquiry).

We would very much hope that the Inquiry will result in recommendations to improve
processes and procedures around the exercise of civil powers by the Australian Federal
Police.

1. Background to Search Warrants executed in relation to Seven West Media in
March 2014

In the lead-up to the release of Schapelle Corby from a Balinese prison in early February
2014, there was significant speculation that Ms Corby would sell her story to an Australian
media outlet on an exclusive basis. All Australian media organisations are believed to
have been engaged in negotiations with members of the Corby family to obtain Ms
Corby’s first interview.

Following Ms Corby’s release this speculation centred on whether such an arrangement
had been made between Seven West Media and Ms Corby for her to provide an exclusive
interview to Seven’s Sunday Night program. In subsequent Federal Court proceedings, it
was acknowledged that the Australian Federal Police commenced an investigation into
Seven West Media based on a number of news reports and commentary which suggested
that a deal had been struck between Seven and Schapelle Corby rumoured to be worth
$2-3 million for an exclusive interview.

It is important to note that the investigation by the Australian Federal Police was not in
relation to any criminal conduct by Seven or any other person. It is not a criminal offence
for a convicted criminal to give an interview to the media. It is not a criminal offence for a
media organisation to publish such an interview. And importantly, it is not a criminal
offence to pay for such an interview or to receive payment in relation to it.

Even if there had been an agreement to pay Schapelle Corby for her story, there was
never, and could not be, any allegation or suspicion that a criminal offence had been
committed by Seven West Media or any other person in relation to such an agreement.
Under the Proceeds of Crime Act 2002 (Cth) (PocA), the power of the Australian Federal
Police is to apply to a court for orders to confiscate any literary proceeds paid to persons
convicted of certain crimes. This is a discretionary civil remedy. Under the Proceeds of
Crime Act, the AFP may commence civil (not criminal) proceedings to stop such payments
being made. The Court may grant the application, having taken into account various
factors including the length of time since the crime was committed and the public interest
in payments for interviews being made.

Despite this, Seven West Media and its representatives were treated in the same manner
as one might expect in relation to serious criminal conduct. This has resulted in serious
damage to the reputation of Seven West Media, its parent company Seven Group
Holdings, and various individuals employed by these companies and their legal
representatives.

It is extremely disappointing that the Attorney General Senator George Brandis and the
Minister for Justice Michael Keenan did not make more substantial independent enquiries
as to what had occurred before indicating their support for the AFP’s actions. The public
endorsement of the treatment of Seven by senior political figures significantly added to the
damage inflicted on Seven West Media and Seven Group Holdings in this process.

The subsequent failure to follow up clear errors and poor judgment as they came to light
seems extremely difficult to explain. In stark contrast to the immediate aftermath of the
search warrants, there has been no public statement from any Government representative
since Justice Jagot’s ruling on 26 March to quash the search warrants and her finding that
the AFP had materially misled the Magistrates who had issued them.

2. Chronology of Events
A full Chronology of all relevant events since 10 February 2014 is contained in
[Attachment 1] to this submission.

The key dates are:
10 February Schapelle Corby released from Kerobokan Prison in Bali.

11 February Production Orders issued on Seven West Media. These orders requested material to be produced within 3 days.

14 February First set of documents provided to the Australian Federal Police by Seven West Media. Clarification of scope of Production Order sought from AFP but no clarification was received.

17 February AFP extends time for compliance with Production Order to close of business that day. Seven provides further documents and indicates it is still searching for any additional documents. A repeated request to clarify scope following the 14 February request was made. Again there was no
response from the AFP.

AFP approaches the Local Court to seek a Search Warrant to be issued against Seven West Media, despite the fact that the time for compliance with the Production Order has not expired. It also seeks associated Orders under section 246 of the PoCA against Justine Munsie and a Seven West Media employee.

18 February AFP executes Search Warrants at various premises of Seven West Media and its lawyers Addisons. Over 30 armed police from Serious and Organised Crime are involved

21 February AFP writes to Seven [Attachment 2] admitting that allegations contained in a Section 246 Order that Ms Munsie, a respected partner with the law firm Addisons, was suspected of committing a criminal offence was a “word processing error”.

Attorney General Senator George Brandis says in a statement that the dispute was a matter for the AFP but he was concerned "about how this appears to have been handled" and that "I will be seeking to establish how this error was apparently made by the AFP."

22 February AFP Deputy Commissioner Phelan holds a press conference in Canberra to again apologise to Ms Munsie but persists in asserting the conduct of the AFP was fully justified because Seven had not complied with the Production Orders served on it. Deputy Commissioner Phelan also maintains it was necessary to execute a search warrant in order to prevent funds leaving the jurisdiction.

24 February Seven West Media, Addisons and Justine Munsie commence proceedings in the Federal Court seeking judicial review of the search warrants and associated orders. Commissioner Tony Negus and Deputy Commissioner Phelan appear before Senate Estimates and are questioned about the Seven West Media search warrants. They again maintain that the warrants were necessary because Seven had not complied with Production Orders. Attorney General Senator George Brandis says at Senate Estimates that he “has no criticism to offer of the AFP, having heard the account that has been given tonight to this Estimates Committee and having…heard from Commissioner Negus on Tuesday afternoon of last week and received a written briefing the following day. Also, I should add for completeness, having had discussed the matter with my junior minister, Mr Keenan, who I know has had several conversations with Commissioner Negus in the last several days, I do not offer any criticism at all.” Senator Brandis makes no mention of the concerns he expressed only 3 days previously about how the matter had been handled or the steps he had taken to establish how the errors made by the AFP occurred. 7 March Federal Court hearing before Her Honour Justice Jagot. 13 March AFP abandons its investigation [Attachment 3]

26 March Justice Jagot hands down her judgment in favour of Seven West Media, Addisons and Justine Munsie. The search warrants are quashed and Jagot J finds that the AFP had materially misled the Magistrates who issued the warrants. A report from the West Australian reporting the result is [Attachment 4]. The judgment is annexed at [Attachment 5].

3. Execution of the Search Warrants

The search warrants were executed at Seven West Media’s Pyrmont headquarters, the offices of Pacific Magazines and the Sunday Night program and Addisons on Tuesday, 18 February 2014. The execution of the search warrants involved more than 30 Australian Federal Police agents from Serious and Organised Crime, many of them armed and deliberately and overtly displaying their weapons, in an exercise which began before 9am and lasted well into the evening.

The AFP seized documents from computer hard drives, including material which fell well outside the scope of material referred to in the search warrant. For instance, a copy of the entire hard drive of our solicitor from 1 December 2013 was made and seized from our solicitor’s premises.

Whilst on Seven West’s premises, the AFP had access to and were able to observe a range of documents and email communication relating to past, current and future news and current affairs stories unrelated to Schapelle Corby or the Corby family, some of which involve confidential information and confidential sources.

No material existed or was seized which evidenced an agreement by Seven West Media to pay Schapelle Corby for a media interview.

The conduct of the AFP during the execution of the warrants must be viewed in light of the previous dealings between the AFP and Seven/Addisons identified in the timeline referred to above.

Given the way in which Seven had rendered assistance to the AFP, including by making its solicitor available at her home to take delivery of a single letter and the fact that the matter did not concern criminal conduct of any kind, the actions taken by the AFP in applying for and executing the warrants were on any reasonable view entirely unnecessary and completely disproportionate to the stated objectives of the warrants. Serious questions surely arise about the manner in which decisions were taken in this matter and whether scarce public resources, both human and financial, have been used
appropriately. In particular:

In particular:

(a) Why was it necessary to deploy over 30 Federal Agents, many of them armed and with their firearms plainly visible, to search the commercial premises of Seven and Addisons? This seems to amount to a clear misuse of Commonwealth resources. The AFP knew from documents produced on the Production Order and explanations given by Ms Munsie of the nature of Seven’s dealings with the Corby family throughout the time of Schapelle Corby’s incarceration.

Seven had produced two recent agreements with members of the Corby family as well as several historical agreements pursuant to the Production Order. Seven then volunteered production of another draft letter agreement (not the subject of the Production Order) soon after the commencement of the execution of the Seven Warrant. The use of large numbers of armed agents in these circumstances to
search for hours for evidence of arrangements which simply do not exist is unjustifiable.

(b) The presence of such a contingent of armed Federal Agents unsurprisingly caused distress to Seven’s staff, including heavily pregnant women. Photos of clearly armed officers are at [Attachment 6]. We understand that the AFP Commissioner’s Order on operational safety (CO3) requires agents to carry all issued munitions and equipment while on operational duty except in limited circumstances. Should the AFP’s operational guidelines prohibit the carriage of firearms in relation to non-criminal matters? If firearms are carried in these circumstances, should there be operational guidelines to recommend that they are not displayed?

(c) Why did the agents in attendance at Seven’s premises seek to execute the warrants, including in relation to documents held by Seven’s in house lawyers (in the offices of those lawyers) in the face of objection made by Seven and the request that the search not commence until Seven’s independent solicitor had arrived to provide advice? Such conduct is in breach of basic protocol and specifically in breach of the General Guidelines between the AFP and the Law Council of Australia as to the execution of search warrants on lawyers’ premises, law societies and like institutions in circumstances where a claim of legal professional privilege is made;

(d) 8 Agents were sent to execute the warrant at Addisons where they spent 7 hours searching two small offices and the hard drive of Ms Munsie who informed them precisely where they could find any documents which related to Seven and any member of the Corby family and the date range of such documents. Despite this assistance, the AFP removed the entirety of Ms Munsie’s hard drive from 1 December 2013 including personally sensitive, confidential and privileged information unrelated to the action in any way. Is this appropriate?

(e) Why did AFP agents suggest to a Seven News reporter and a Seven West senior executive that filming the warrant was not permitted and that legal consequences would flow if Seven News continued to do so? Deputy Commissioner Phelan subsequently admitted in his press conference on 22 February that filming of the execution of search warrants is not illegal [Attachment 7 – Seven News story, 18 February 2014].

4. Federal Court Proceedings

On 24 March 2014, Seven West Media, Pacific Magazines, Addisons and Addisons
partner, Justine Munsie, commenced proceedings in the Federal Court of Australia
seeking judicial review of the search warrants and associated orders which had been
issued at the AFP’s request. The review application was heard by Her Honour Justice
Jagot on Friday, 7 March 2014 and judgement was delivered on 26 March 20141.

The applicants argued that the decision to issue the warrants ought to be set aside
because of the misleading and prejudicial nature of the information placed before two
Local Court Magistrates by the AFP. That information included:

• Statements contained in the search warrants that certain persons, including Ms
Munsie were “suspects” in an investigation, when it was common ground that none
of those persons, other than Schapelle Corby, was or had ever been a “suspect”;

• Statements contained in section 246 orders that Ms Munsie and another Seven
West Media employee were “reasonably suspected of having committed a criminal
offence” when it was again accepted that none of those persons was or had ever
been so suspected. Although counsel for the AFP described these statements as
mere “errors” and the AFP Commissioner and Deputy Commissioner had
previously described them as “typos”, Justice Jagot rejected the submission that
the errors were trivial or inconsequential, holding instead that the errors had
materially misled the Magistrates who issued the warrants.

• Assertions made on affidavit by the AFP that Seven West Media had not complied
with the Production Order when in fact we were complying and the AFP had
granted an extension for compliance in any event.

Jagot J found that the decisions made by the Magistrates to issue the search warrants
and section 246 orders were materially affected by legal error and should be quashed,
with the effect that they are taken not to have existed.

Her Honour held that the AFP did not make it clear to the issuing Magistrates that neither
the deriving of literary proceeds nor the payment or facilitation of a payment which might
give rise to a literary proceeds order, is an offence. This ambiguity, together with the
making of the erroneous statements referred to in paragraphs (a) and (b) above in the
urgent circumstances in which the applications for search warrants were made, meant
that it was likely that the Magistrates incorrectly assumed that there was some offence
relating to literary proceeds in the PoCA which would justify issuing the warrants.

Jagot J concluded at [80] that “it is not all difficult to see how and why the [Magistrates]
were led into error by the AFP”.

It was acknowledged by AFP Counsel during the hearing and noted by Jagot J that the
scope of the search warrants was wider than the Production Orders.

Her Honour further found that the AFP had materially misled the Magistrates who issued
the warrants by:

(a) stating that the AFP was not satisfied that Seven had complied with the
production order when a consensual regime was in place for continuing
compliance; and

(b) failing to disclose to the Magistrates the evidence of Seven’s compliance
with the production order.

However, her Honour was bound by authority not to rely on those factors in support of her
decision to quash the warrants as she could not say that there was fraud involved.

5. What was achieved and what else could have been done?

5.1 What was achieved?

At the end of the searches well into the evening of 18 February, the AFP had seized a
swathe of irrelevant documents, including privileged legal advices and copies of computer
hard drives taken from our offices and those of our solicitor which contain documents well
outside those authorised in the warrants. None of these show any payment by Seven
West to Schapelle Corby for an interview.

Seven West volunteered to the AFP a draft (unsigned) agreement with Mercedes Corby
which proposed payment to Schapelle Corby but this agreement was never entered into
and the AFP has admitted that Seven West was not required to produce draft documents
under the original Production Order.

The AFP abandoned its investigation on 13 March 2014. Significant amounts of time and
resources had by this time been wasted by the AFP, Seven and Addisons on an entirely
unnecessary and excessive operation.

The AFP has informed Seven that all documents seized have now been returned to
Seven and Addisons respectively. However Seven has no knowledge of whether any
confidential material has been accessed or copied prior to being returned to it. We
understand that there is no protocol that governs the manner in which sensitive and
confidential material is to be handled once it has been removed pursuant to a civil search
warrant. This is in contrast to procedures in relation to material where privilege is claimed
where a protocol does exist.

We would submit that given the potential for highly sensitive material such as journalists
sources to be collected in matters such as these, a clear protocol to ensure these
materials are not inappropriately accessed is clearly needed.

Page 2 - Page 3 - Page 4

Page 2. Senate Standing Committee on Legal and Constitutional Affairs - Submission by Seven West Media

5.2 What else could the AFP have done?

Serious questions arise as to why the Australian Federal Police did not consider other less
intrusive means to address its concerns in relation to the payment of any literary proceeds
to Ms Corby.

Firstly, why did the AFP not directly ask Seven West Media whether any deal existed or
was being negotiated with Schapelle Corby and request any supporting documentation
before having recourse to Production Orders?

Secondly, the terms of the search warrant were acknowledged by the AFP in Federal
Court to be wider than the original Production Orders. Why did the AFP not simply ask for
the additional documents it appears to have omitted from its original documentation? On
presentation of the search warrant, the single document (an unsigned draft agreement)
that satisfied the wider search criteria was offered up by Seven.

Thirdly, AFP Commissioner Nugent and Deputy Commissioner Phelan have both stated
that a key driver for the actions of the AFP was to ensure that monies were not paid to Ms
Corby in Bali where they may not be able to be recovered.

It is common practice prior to commencement of other civil litigation for one party to
request undertakings from another not to engage in particular conduct. In this instance,
as the Federal Police indicated that the specific matter of concern was that money may
have been paid and moved out of the jurisdiction, the AFP could have requested a written
undertaking from Seven not to make any payments to Schapelle Corby or any person
acting on her behalf until such time as they had been able to ascertain whether any
agreement existed between Seven and Ms Corby.

Why did the AFP not make a simple request of Seven to undertake not to make any such
payments? Such a request would have been very difficult for a company in Seven’s
position to refuse.

It is an offence under Section 211 of PoCA not to comply with a Production Order issued
under section 202. Seven has a longstanding record of full compliance with the numerous
Production Orders, Subpoenas and other legal requests for information that are regularly
received from the AFP and State police by all media outlets.

Seven West Media is a publicly listed company and holds a number of commercial
television and radio licences issued under the Broadcasting Services Act 1992 (BSA).
Clause 7(1)(h) of Schedule 2 of the BSA stipulates that it is a condition of a commercial
broadcasting licence that “the licensee will not use broadcasting services in the
commission of an offence against another Act or a law of a State or Territory”.

In addition, section 41 of the BSA requires that a company holding a commercial
broadcasting licence must be a “suitable licensee”. In determining whether a licensee is
“suitable” the ACMA must take into account a number of factors set out in subsection
45(3) including:

• (b) the company’s record in situations requiring trust and candour; and
• (c) whether the company, or a person [in a position to control the company] …has been convicted of an offence against this Act or the regulations.

It follows that non-compliance with a Production Order or indeed failure to provide or
comply with an undertaking in relation to the PoCA, could reasonably be considered to
place at serious risk the ability of Seven West Media to hold commercial broadcasting
licences.

It is inconceivable that a corporate citizen of Seven’s standing, with additional
requirements under its broadcasting licences, would jeopardise its reputation and the
licences that are central to its business operations by risking non-compliance with a
Production Order.

6. Relevant provisions of Proceeds of Crime Act

The PoCA establishes procedures by which the DPP or the AFP may investigate and
seek to confiscate payments of proceeds of crime. Since 2002, proceeds have included
“literary proceeds” in addition to the traditional proceeds of criminal offences or benefits
derived from criminal offences.

Section 153 of the PoCA provides that:

(1) “Literary proceeds are any benefit that a person derives from the commercial exploitation of:

• (a) the person’s notoriety resulting, directly or indirectly, from the person committing an indictable offence or a foreign indictable offence;
• (b) the notoriety of another person involved in the commission of that offence resulting from the first mentioned person committing that offence.

(2) The commercial exploitation may be by any means, including:

• (a) publishing any material in written or electronic form;
• (b) any use of media from which visual images, words or sounds can be produced; or
• (c) any live entertainment, representation or interview.

…In determining whether:

• (a) a person has derived literary proceeds;
• (b) the value of the literary proceeds that a person has derived;

the court may treat as property of the person any property that, in the court’s opinion:

• (b) is subject to the person’s effective control;
• (c) was not received by the person, but was transferred to, or (in the case of money) paid to, another person at the person’s discretion.”

A Court has power under section 152 of the POCA to make an Order requiring a person to
pay an amount to the Commonwealth if the AFP or the DPP applies for such an Order.
Before making an Order the Court must be satisfied that the person has committed an
indictable offence or a foreign indictable offence and that the person has derived literary
proceeds in relation to the offence.

Under section 154 of the POCA in deciding whether to make a literary proceeds order, the
Court must take into account:

Under section 154 of the POCA in deciding whether to make a literary proceeds order, the
Court must take into account:

(i) The nature and purpose of the product or activity from which the literary proceeds were derived;

 (ii) Whether supplying the product or carrying out the activity was in public interest;

 (iii) The social, cultural or educational value of the product or activity;

 (iv) The seriousness of the offence to which the product or activity relates;

 (v) How long ago the offence was committed;

and may take into account such other matters as it think fit.

It is clear from the matters referred to above that literary proceeds are to be treated very
differently to other proceeds of crime which are earned by convicted criminals as a direct
result of or in the course of committing an offence. The matters listed for consideration in
section 154 in particular suggest that there may be many cases when a Court will
determine in the circumstances that it is not appropriate for any Order to be made for the
payment to the Commonwealth of literary proceeds. In other words, the Courts may
determine that in all the circumstances it is appropriate for a person, notwithstanding the
commission by them of a criminal offence, to receive and retain payment for the provision
of services which relate to their criminal notoriety.

Prior to legislative amendments made in 2011, a literary proceeds order could only be
applied for by the Commonwealth DPP. However, in 2011, the AFP also became
empowered to apply for such an Order.

In order to obtain information regarding the possibility of payment of any proceeds of
crime, including literary proceeds, the AFP has various additional powers, including the
power to apply for Production Orders (section 202 of the PoCA) and search warrants
(s225 of the PoCA). The AFP exercises these powers as it would do in the discharge of
its normal criminal functions. In our submission, it is unjustifiable as a matter of law and
policy for such powers to be exercised by the AFP in relation to literary proceeds where
no criminal activity is alleged or involved by the payment or receipt of literary proceeds.

Page 1 - Page 3 - Page 4

Page 3. Senate Standing Committee on Legal and Constitutional Affairs - Submission by Seven West Media

7. Submissions in relation to Committee’s Terms of Reference

(a) Thresholds, including evidentiary thresholds, relating to the obtaining of
production orders and search warrants, and in particular whether these
reflect the rules;

and

(b) Procedures preparatory to seeking production orders and search warrants,
including taking into account the conduct of the recipient of such orders.

These terms of reference relate to the rules and procedures in place when the AFP seek
production orders and search warrants under Sections 202 and 225, respectively, of the
PoCA.

The recent judgment of Jagot J in Seven West Media’s action against the AFP illustrates
the problems which arise from the involvement of the AFP in making applications for such
warrants and orders in the course of gathering information in relation to a civil matter,
being the possible payment of literary proceeds.

Such applications should be undertaken with great care, given that the warrants and
section 246 orders “authorise actions which would otherwise constitute trespass and,
insofar as searches of the person are concerned, an assault. They represent serious
incursions into private and property rights”2

It cannot be assumed that a Magistrate would be aware of the way in which the PoCA
operates and especially not the fact that there is no criminal offence involved or alleged
when dealing with the payment of literary proceeds. It is especially necessary in those
circumstances that any application for search warrants or section 246 orders involves the
full and frank disclosure of all material information to the Magistrate, to the same standard
required on any ex parte application for civil relief.

Seven West Media submits that the procedures currently in place in so far as literary
proceeds are concerned require amendment so that:

• Literary proceeds are clearly distinguished from other proceeds of crime in the PoCA; and
• the AFP is no longer involved in applications under sections 202 and 225 of the PoCA; and
• any applications are made as a matter of last resort, after other avenues of information gathering have been exhausted

These amendments are necessary in order to ensure that:

• Commonwealth police resources are appropriately managed and used;

• An appropriate level of priority is given to the obtaining of production orders and search warrants for literary proceeds matters relative to the importance and likelihood of ever obtaining any literary proceeds order;

• The objects of the PoCA are best achieved and the public interest properly served;

• As far as possible, that parties unrelated to any person who has committed a
relevant crime, are treated with appropriate respect, especially taking into account
the civil nature of any literary proceeds proceeding which may result following the
issuing of a production order or search warrants and the fact that media
organisations likely are to be involved which gives rise to issues of concerning
freedom of speech as well as confidential sourced materials.

In particular, Seven West Media submits that:

1. The threshold test of obtaining production orders and search warrants should be
raised to require that more than a “reasonable suspicion” regarding the existence of
documents evidencing literary proceeds be required before such orders or warrants
are issued.

The threshold tests applied in Anton Piller orders, or “search orders” under the
Uniform Civil Procedure Rules 2005 (NSW) provide a useful guide of the tests that
could be adopted in civil matters being investigated by the AFP. These orders have
the object of preserving evidence necessary to an applicant’s claim which is at
imminent risk of destruction, tampering or removal from the jurisdiction.
[Attachment 8] provides more detail of the criteria applied by the courts in such
matters.

2. The inconvenience to third parties, especially media organisations, should
specifically be taken into account before issuing such orders and warrants.

3. Consideration be given to whether alternate means of collecting evidentiary material
from media organisations and similar third parties. For example, Seven West Media
submits that the application for production orders or search warrants under the
PoCA should follow procedures equivalent to those for an application for preliminary
discovery under Division 7.3 of the Federal Court Rules.

That process generally requires the applicant for such an order first to demonstrate
that they have made reasonable inquiries to obtain documents by other means, such
as writing to those parties who might have access to such documents and
requesting that such documents be made available. If such a procedure had been
implemented in the recent case of Seven West Media, Seven West Media would
have been able to provide in a timely fashion information to the AFP which
confirmed that:

• A payment had been made to Mercedes Corby for her agreement to provide
an interview with New Idea magazine in January 2014, but that no such
interview was provided by and no payment given to Schapelle Corby in
relation to that article.

• Sunday Night had entered into an agreement with Mercedes Corby under
which Mercedes Corby would provide the Seven Network’s Sunday Night
program with an exclusive television interview but that no fee was payable
either to Mercedes Corby or Schapelle Corby under that agreement.

• Rumours in the media, in particular by Seven’s commercial competitors, that
an agreement had been reached for payment to Schapelle Corby of $2-3
million, were entirely false.

In the absence of any basis for disbelieving the information provided by Seven, it is
likely in those circumstances that the AFP would not have proceeded to have issued
the production orders or the search warrants and would have saved the considerable
resources expended on the investigation which has now been abandoned. Similarly,
the time and cost to Seven West Media, in relation to a matter which does not involve
the commission of a criminal offence or the allegation of such a criminal offence,
including the time of its own staff and its lawyers, would also have been saved.

(c) Procedures for executing search warrants

On the assumption that the present system allowing for search warrants to be issued at
some stage in the process of an investigation into literary proceeds matters be continued,
Seven West Media would recommend changes to the practice of execution of those
search warrants, in so far as they are executed on media companies and agents of media
companies, including legal representatives.

We believe that changes are required to this procedure in order to reflect the fact that
neither the media organisations nor their agents are suspected in any way of being
involved in the commission of a crime and that, at best, information may be obtained on
the execution of a warrant which may lead eventually to the payment of money, in a civil
proceeding, to the Commonwealth. Given the notional benefit which might be involved
eventually as a result of the execution of a search warrant, compared to the degree of
inconvenience to the media organisation and its agents and the potential for confidential
information, including journalists’ sources and legally privileged material to be disclosed,
observed or seized, under the current search warrant procedure, Seven West Media
submits that such restrictions are clearly warranted. We submit in particular that the
following restrictions be introduced to the PoCA in relation to the execution of search
warrants on media organisations and their agents:

• Search warrants must be carefully drafted so that they relate only to specific
categories of documents, within a specific time period, which the available
evidence suggests with a degree of certainty may exist;

• An opportunity be given to the occupier of the premises being searched to perform
the relevant searches, especially of material stored on computers, and provide
those to the AFP, together, if necessary with an undertaking that no documents
will be destroyed;

• Privilege claims may be made over legally privileged material with the onus shifting
to the AFP to disprove any privilege claims.

• Protection should also be given to material over which a claim of journalist
privilege is made and that no such documents are made available for inspection by
the AFP. This is discussed further below.

(d) Safeguards relating to the curtailment of freedom of speech, particularly in
relation to literary proceeds matters;

Seven West Media submits that due consideration be given to the effect on freedom of
speech which is likely to result from the use of current procedures under the PoCA in
relation to literary proceeds matters.

There exists presently some degree of legislative acknowledgment given to the public
interest in the freedom of speech in section 154 of the PoCA which sets out the factors
which a court must take into account in deciding whether to make a literary proceeds
order for the payment of money to the Commonwealth. Those factors include whether
supplying the "product" (eg interview or story) was in the public interest and the social,
cultural or educational value of such a product.

However, there is currently no similar consideration required to be given before
applications for production orders or search warrants are made in literary proceeds
matters under the PoCA. This is likely to result in a chilling effect upon freedom of speech
as media organisations are less likely to enter into agreements to interview persons
convicted of crimes and report on those stories. Important stories exposing such matters
as the realities of criminal life, Australia's law enforcement system and the redemption and
rehabilitation of criminals may go untold in the circumstances.

To counteract that risk, Seven West Media recommends that public interest factors, such
as those contained in section 154 of the PoCA, be taken into account before a court will
issue a production order or a search warrant under s202 or s225 of the PoCA.

(e) Safeguards for ensuring the protection of confidential information, including
journalists’ sources, obtained under search warrants, and particularly where
that information does not relate to the search warrant.

There is currently nothing in the PoCA which provides for the protection of confidential
information, including journalists’ sources, from disclosure in circumstances where a
production order or a search warrant has been issued, including to a media organisation.
In the case of a production order, the issue is dealt with specifically in section 206 (1) of
the PoCA which provides that a person is not excused from producing a document or
making a document available under a production order on the grounds that to do so would
breach an obligation of the person not to disclose the existence or contents of the
document. Whilst there is no equivalent provision in relation to provision of a search
warrant, there is no explicit protection for such documents from seizure.

Seven West Media believes there is a clear imperative for building into the PoCA some
protection of journalists’ sources which is consistent with shield laws which have already
been enacted in the Commonwealth Evidence Act, as well as similar provisions which
now exist at a state level in New South Wales, Victoria, Western Australian and the ACT
to protect journalists’ confidential sources. This could be dealt with in the relatively simple
way of subjecting the obligation to produce documents in response to a production order
or the powers of the AFP to seize documents pursuant to a search warrant to the
provisions section 126 (h) of the Evidence Act 1995 (Cth). The onus would then shift,
appropriately, to the AFP to demonstrate that the public interest in the disclosure of
evidence of the identity of an informant outweighs any likely adverse effect on the
disclosure of the informant.

Such a change would give appropriate priority to the public interest in the communication
of facts and opinions to the public by the news media. Such a procedure would also allow
a media organisation to make a claim over any documents and not produce those
documents and would prevent any inadvertent or accidental disclosure of journalists’
sources in circumstances where material produced by a media organisation comes into
the possession of the AFP or other third parties.

Consideration should also be given to the establishment of a protocol that documents the
manner in which documents obtained through a search warrant are

• stored;
• accessed; and
• how such access is recorded

where a party claims that documents are of a confidential or sensitive nature and are
unrelated to the subject matter of the search.

(f) Powers available to the AFP to intercept telecommunications in
circumstances where the matter under investigation does not involve
criminal conduct

Seven West Media is not aware of any order being made for the interception of its
telecommunications as part of the AFP’s recent investigation.

It is however crucial in our submission that no powers be made available to the AFP to
intercept the communications of any media organisation or related third party in the
absence of any allegation of criminal conduct.

(g) The priorities of the Serious and Organised Crime Division, and the
circumstances under which they should appropriately be deployed in
relation to non-criminal matters

In August 2009, the Parliamentary Joint Committee on the Australian Crime Commission
recommended that the Australian Government examine an integrated model of asset
recovery in which investigation and prosecution of criminal proceeds matters would be
undertaken. With the introduction of the Crimes Legislation Amendment Bill (No. 2) 2011,
the PoCA was amended to enable the commissioner of the AFP to exercise powers and
functions relating to confiscation litigation which had until then been exercised only by the
DPP, and for the AFP to delegate those powers. At the same time as those amendments
were made, the Government established the Criminal Assets Confiscation Task Force to
take responsibility for litigating all proceeds of crime matters relevant to the investigation
undertaken by the task force.

The Criminal Assets Confiscation Task Force forms part of the AFP’s Serious and
Organised Crime portfolio. A description of the AFP’s serious and organised crime
portfolio is found on the AFP’s website at http://www.afp.gov.au/jobs/graduateprogram/areas-you-can-work-in/crime-program.aspx as follows:

• “Serious and Organised Crime conducts investigations into complex
  organised criminal activity including the importation and manufacture of
  illicit substances, money laundering and economic crime, fraud, identity
  crime and corruption. In order to target the threat posed to Australia’s
  national security by organised crime, serious and organised crime
  investigations focus on mitigating the key vulnerabilities that are exploited
  by criminal enterprises, including supply chain logistics on the waterfront,
  in the airstream and across transnational boarders.
• 
  Investigations are also focused on increased industry engagement within
  the banking and financial sector. The AFP has developed key task forces
  and a systematic approach to working with industry in order to combat
  organised crime activity within this area. Serious and organised crime also
  incorporates the AFP’s international network which cooperates with other
  Australian government agencies domestically and abroad to ensure a
  whole of government approach to fighting crime offshore at its source.”

 It is Seven West Media’s submission that it is inappropriate and a serious drain on limited
public resources to direct the attention of the AFP’s Serious and Organised Crime portfolio
to the investigation of literary proceeds matters where no crime is suspected or alleged to
be involved in the payment or receipt of such literary proceeds on no threat to Australia’s
security interests is involved.

Seven West Media submits that it is not in the public interest for the resources of a
portfolio with functions as outlined above to be involved in undertaking search functions in
relation to literary proceeds orders, especially when dealing with media organisations.
It is an entirely disproportionate use of resources, coupled with an undesirable and
intimidating effect on corporate and other citizens such as media organisations, to be
involving the Serious and Organised Crime portfolio in this way.

Page 1 - Page 2 - Page 4 

Page 4. Senate Standing Committee on Legal and Constitutional Affairs - Submission by Seven West Media

8 SUMMARY

Seven West Media submits that the following amendments be considered to the Proceeds
of Crime Act or similar legislation where powers normally associated with criminal
investigations are used in non-criminal matters.

1. Literary proceeds are clearly distinguished from other proceeds of crime in the PoCA.

2. The AFP is no longer involved in applications under sections 202 and 225 of the PoCA.

3. The threshold test of obtaining production orders and search warrants should be
raised to require that more than a “reasonable suspicion” regarding the existence
of documents evidencing literary proceeds be required before such orders or
warrants are issued. Threshold tests similar to Anton Piller (civil search) orders
should be adopted in civil matters under the PoCA.

4. The likely effect on and inconvenience to third parties, especially media
organisations, should specifically be taken into account before issuing such orders
and warrants.

5. Consideration be given to whether alternate means of collecting evidentiary
material from media organisations and similar third parties, such as the Federal
Court preliminary discovery procedure.

6. Search warrants must be carefully drafted so that they relate only to specific
categories of documents, within a specific time period, which the available
evidence suggests with a degree of certainty may exist.

7. An opportunity be given to the occupier of any premises being searched to perform
the relevant searches, especially of material stored on computers, and provide
those to the AFP, together, if necessary with an undertaking that no documents
will be destroyed.

8. Public interest factors, such as those contained in s154 of the PoCA, be taken into
account before a court will issue a production order or a search warrant under
s202 or s225 of the POCA.

9. Privilege claims may be made over legally privileged material with the owners
shifting to the AFP to disprove any privilege claims.

10. The obligation to produce documents in response to a production order or the
powers of the AFP to seize documents pursuant to a search warrant be made
subject to section 126 (h) of the Evidence Act 1995 (Cth).

11. The Serious and Organised Crime Portfolio no longer be involved in undertaking
search and related functions in relation to literary proceeds orders.

12. Protocols for protection of confidential material and journalists sources should be
implemented.


ATTACHMENT 1

Detailed Chronology of Events

10 February

Schapelle Corby is released from prison in Bali.
There followed several incorrect media reports that Seven had secured an
exclusive interview with Ms Corby for which it would pay millions of dollars.
At no stage is Seven contacted by the AFP to inquire about those reports.

11 February

On the basis of the reports of a rumoured deal, the AFP approached a
Local Court Magistrate on 11 February 2014 who issued a Production
Order under Section 202 of the PoCA.

The time for responding to the Production Order was abridged from the
usual 14 days to less than three business days, with the documents
returnable to the AFP by 4pm on 14 February 2014.

14 February,
12.30pm

Seven’s solicitor, Justine Munsie, telephones Agent Jeff Kokles at the AFP
to seek clarification of the documents sought in the order, especially on the
basis that the categories were unlimited as to time and some were
ambiguous in their terms.

Agent Kokles asks Ms Munsie to put her requests in writing which she did
at 12.42pm.

Agent Kokles responds by email at 1.52pm. Requires production of
documents dating back two years by 4pm and other documents up to ten
years old by 25 February 2014.

14 February,
3.50pm

Justine Munsie personally attends the AFP in Goulburn Street to produce
documents in response to the Production Order.

Ms Munsie spends approximately 10-15 minutes explaining to Agent
Kokles and two of his colleagues what documents Seven has located in
the time available and what other types of documents, especially historical
documents, Seven believes it may have but for which it is still searching.

Ms Munsie informed the AFP that:

(a) it had produced documents in relation to an agreement between
Seven Network’s Sunday Night program and Mercedes Corby for
an exclusive television interview (Sunday Night agreement);

(b) it had produced documents relating to a recent agreement
between New Idea magazine and Mercedes Corby dated 24
January 2014 for an exclusive interview with New Idea in return
for payment, but it had not yet found documents which evidenced
the payment having been made (New Idea agreement);

(c) it had located a number of other agreements between Pacific
Magazines and members of the Corby family as well as unrelated
third parties in relation to articles about Schapelle Corby which
had appeared in Pacific Magazine’s publications since the time of
Schapelle Corby’s arrest in 2005. Ms Munsie noted that the
agreements with third parties could not give rise to any issue in
relation to proceeds of crime and asked whether the AFP had
intended the Production Order to capture such documents; and

(d) Pacific Magazines was likely to have other documents going
back several years, which evidenced payments to people who
had provided photos of Schapelle Corby or her family since the
time of her arrest in 2005. Ms Munsie asked the AFP agents if it
was intended that those documents be produced pursuant to the
Production Order, particularly where the documents related to
payments to third parties, such as paparazzi, and therefore did
not evidence any payment to Schapelle Corby.

The AFP told Ms Munsie that it was not able to answer her
questions at that time.

17 February,
11.30am

AFP Officers attend the premises of Addisons to serve Ms Munsie with a
letter. As Ms Munsie is working from her home that day and the AFP insist
that the letter be served personally, Ms Munsie invites the officers to her
home to hand her the letter.

Three AFP officers arrive at Ms Munsie’s home shortly before midday and
hand her a letter signed by Det Superintendent Stephen Dametto, Serious
& Organised Crime.

The letter alleged that Seven West Media had not complied with the
Production Order and extended the time for compliance to the close of
business that day, in particular to provide:

• - Documents relating to funds payable under the Sunday Night agreement; and
• - Documents evidencing payment to Mercedes Corby under the New Idea agreement.

17 February,
4.24pm

Letter from Addisons to Det Superintendent Stephen Dametto informing
the AFP that:

• - It was still searching for documents in relation to the New Idea payment;
• - There were no funds payable under the Sunday Night agreement and therefore no such documents could be produced;
• - It was continuing to search for documents as it had indicated previously and repeated its earlier requests for clarification over the extent of the Production Orders.

No response was received from AFP.

17 February,
5.46pm

Telephone call from Justine Munsie to Adam Sandon AFP to inform him
that Seven has further documents to produce and she will send them
immediately by email.

Email from Justine Munsie to AFP attaching further documents in
response to the Production Order, being remittance notices for payments
made by New Idea for stories published between 2011 and 2014. This
includes one document which did not come into existence until sometime
on 14 February 2014.

17 February 

Notwithstanding that the AFP had allowed Seven West Media until the
close of business on 17 February to provide a response to its questions
and knew that actions to provide documents were ongoing, the AFP
nevertheless approached the Local Court with an application that search
warrants be issued against Seven West Media and others. The warrants
were issued by 3:55pm on Monday 17 February.

The information placed before the Local Court Magistrate by the AFP in
support of its application included:

• An affidavit sworn by an Australian Federal Police agent which
stated that Seven West Media had not provided certain information
to the AFP but did not state that the AFP had allowed Seven West
Media an extension of time in which to provide that information;
• Draft search warrants which named as “suspects” in a criminal
investigation a number of Seven West Media staff and external
solicitors;

• An Order under Section 245 of the PoCA addressed to Justine
Munsie in which it was stated that the Magistrate was satisfied that
there were reasonable grounds for suspecting that Ms Munsie had
committed a criminal offence.

18 February 

The AFP applied for a further search warrant together with a further
affidavit which again stated that Seven West Media had not provided
certain information to the AFP, even though that information had been
provided the previous afternoon

AFP executes the warrants at Seven West Media’s corporate
headquarters in Pyrmont, the offices of Sunday Night and New Idea and
Seven’s solicitors, Addisons.

21 February 

AFP issues a statement acknowledging that the statement contained in
the Section 246 Order that Justine Munsie was reasonably suspected of
committing a criminal offence was incorrect and apologises, blaming a
“word processing error”

Attorney General Senator George Brandis says the dispute was a matter
for the AFP but he was concerned "about how this appears to have been
handled." and "I will be seeking to establish how this error was apparently
made by the AFP."

22 February 

AFP Deputy Commissioner Michael Phelan conducts a press conference
to apologise for the error in relation to Ms Munsie but repeats claims that
Seven had not complied with the Production Orders served on it and that
this was the basis on which search warrants were sought.

24 February 

Commissioner Tony Nugent and Deputy Commissioner Michael Phelan
appear before the Legal and Constitutional Affairs Senate Estimates
Committee hearing. They repeat their claims of non-compliance by Seven
and their view that the manner in which this matter has been handled is
standard operating procedure.

Seven West Media, Addisons and Justine Munsie commence proceedings
in the Federal Court seeking judicial review of the search warrants and
associated orders.

Attorney General Senator George Brandis says at Senate Estimates that
he “has no criticism to offer of the AFP, having heard the account that has
been given tonight to this Estimates Committee and having…heard from
Commissioner Negus on Tuesday afternoon of last week and received a
written briefing the following day. Also, I should add for completeness,
having had discussed the matter with my junior minister, Mr Keenan, who I
know has had several conversations with Commissioner Negus in the last
several days, I do not offer any criticism at all.”

Senator Brandis makes no mention of the concerns he expressed only 3
days previously about how the matter had been handled or the steps he
had taken to establish how the errors made by the AFP occurred.

7 March 

Federal Court hearing. The AFP is represented by 5 lawyers from top tier
Sydney law firm Ashursts as well as Senior and Junior Counsel.

13 March 

The AFP informs Seven West Media that it has discontinued its
investigation.

26 March 

Her Honour Justice Jagot hands down her decision in favour of Seven,
Addisons and Justine Munsie.

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