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