As you are no doubt aware, David Hicks is now back in Australia and locked away in a maximum security prison in Adelaide. The South Australian government in its wisdom has now announced legislation to stop Hicks from selling his story to the media.
One question which immediately arises is: does such legislation amount to a bill of attainder? A bill of attainder is a piece of legislation which targets a specific individual or group and imposes a legislative punishment, typically for past conduct. As explained by the High Court in Polyukhovich v The Commonwealth (1991) 172 CLR 501 (per Mason CJ at 535):
The distinctive characteristic of a bill of attainder, marking it out from other ex post facto laws, is that it is a legislative enactment adjudging a specific person or specific persons guilty of an offence constituted by past conduct and imposing punishment in respect of that offence. Other ex post facto laws speak generally, leaving it to the courts to try and punish specific individuals.
The notion that a bill of attainder is fundamentally incompatible with the rule of law is one of the principles that Australia has inherited from the English common law. It is also entrenched in the United States constitution. In Polyukhovich the High Court held that such legislation would be in breach of the Australian Constitution in that it would amount to an overthrow of the constitutionally enshrined role of the courts:
…the separation of powers effected by our Constitution would invalidate a bill of attainder on the ground that it involves a usurpation of judicial power.
Per Mason CJ at 539; the majority of the Court agreed.
In Polyukhovich the High Court was concerned with a piece of legislation passed by the federal Parliament. That case will remain relevant to any attempts by the Howard Government to modify its own ‘proceeds of crime’ legislation to include Hicks. In Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, however, the High Court refused to use the same basis to strike down New South Wales legislation directed at the detention of a specific individual. The Court ruled that, as the State of NSW (unlike the Commonwealth) has no constitutional separation of powers, the law could not violate that principle. Instead, the High Court held that the law was invalid on the basis that it required the Supreme Court of NSW to perform a function incompatible with its dual role as both a state court and a court vested with the judicial power of the Commonwealth (for non-lawyers – or lawyers who have forgotten their constitutional law – the state Supreme Courts are an unusual area of overlap under the Australian Constitution in that they simultaneously exercise judicial power of their state and of the Commonwealth).
Would the SA legislation violate the separation of powers in the Constitution as a result of the authority of Kable? It’s hard to say more without knowing the details of the legislation. One question is whether the consequences for Hicks of the proposed law are severe enough to amount to a ‘punishment’ in the relevant sense, and indeed whether that is a relevant consideration. Presumably one effect of the law will be to declare in some way that Hicks’ past conduct was criminal, but a counter-argument might be that it merely prohibits future conduct (sale of publication rights) by the world at large in certain circumstances (such as where a person is convicted of an offence by a US military tribunal), which just happen to cover Hicks and nobody else.
Alternatively, the law may rely somehow on the same foundations that are currently the basis for Hicks’ detention within Australia notwithstanding that he has breached no Australian law – presumably he is being detained under a treaty between the United States and Australia entered into by the Commonwealth. If this is the case it might well bring the matter back within the realm of the lawmaking powers of the Commonwealth and therefore squarely back into the Polyukhovich principles irrespective of whether the Supreme Court of South Australia is involved. It is also unclear whether the legislation will in fact require a court to make some manner of declaration or order to give it effect, which may determine whether the rather circuitous principles established in Kable are applicable.
In any event, (and unfortunately, from a constitutional law perspective) Hicks’ lawyer has already indicated that he does not intend to challenge any aspect of his imprisonment in Australia, no doubt preferring to see out his time in prison as painlessly as possible between now and his release in December. At that point the Commonwealth will slap a control order on him, which is another type of law which has some serious constitutional questions hanging over it. The validity of control orders is currently being considered by the High Court in relation to Jack Thomas (you can read more about that case here).
Legal questions aside, there are extremely strong policy reasons why the SA legislation should be regarded as unacceptable in a genuinely democratic and free nation. As Crikey says in its subscriber email today:
By legislating against Hicks, the SA Government is putting its endorsement on everything that went on at Guantanamo Bay. It is making a deliberate choice to import those standards – the standards of torture, arbitrary detention and retrospective punishment – into Australian law.
However much I might think on a moral basis that Hicks should not profit from his actions, I do not think that the SA government can validly legislate against it.
I must confess I’m no public lawyer. I have a nightmare that I might be asked to teach Constitutional or Administrative law one day. But what I do know a bit about is getting wrongdoers to cough up their profits in Equity or at common law.
It seems to me that if the SA government tried to sue Hicks in common law or equity for profits he made from selling his story, they’d fail. Even in Attorney General v Blake, the UK case involving the spy who wrote his memoirs 30 years on, and was stripped of his profit, the House of Lords says that you need to have committed some kind of legal wrong. In Blake it was a breach of an employment contract which led to Blake being required to disgorge his ill-gotten gains. Blake has not as yet been approved in Australia. But what legal wrong has Hicks committed? The whole point of the Guantanamo detention is that he did not commit a legal wrong at the time he was captured – no criminal wrong, and no civil wrong, as far as I can see. He has no contractual relationship with the Australian government whereby he agreed not to disclose information without its consent (c/f Blake and the US case of Snepp). He has not infringed any proprietary rights, or committed any tortious action.
I don’t think you can get around this by retrospective legislation. It just seems fundamentally wrong to me. If the government can’t point to any legal wrong which Hicks committed at the time when he joined Al Qaeda, it seems to me that there is no way in which it can require him to disgorge any ill-gotten gains. You can’t just say he has to cough up “because we say so”. That way lies danger.
I have some difficulty with this proposition for the simple reason that Hicks has not been convicted of any offence by a (valid) court of law. It’s one thing to debate whether criminals convicted of offences in fair trials should be entitled to make money from selling their stories – it’s another thing to say the same of someone like Hicks, who has basically had trial by media and by kangaroo court at best and who unquestionably pleaded guilty to get out of the Guantanamo hellhole.
Excellent point raising AG v Blake – it’s a very interesting case, I read it a couple of years ago. It just emphasises even more strongly the importance of determining the basis of Hicks’ detention in Australia – which I suspect would be struck down by the High Court if challenged, but unfortunately it doesn’t seem like there’s any prospect of that.
Of course, even more fundamentally it raises the issue of retrospective legislation generally, and particularly with a criminal flavour, which is as yet unresolved by the High Court (they have deftly avoided it a number of times, as I recall).
On a more general note – if people want to buy his story, what principle precisely says that he should not be allowed to sell it? I confess I come at this from the point of view that information should generally be as free as possible, and that artificial limitations on what one may do with information should generally be resisted (maybe a bit of a libertarian/anarchist streak…)
I agree with you P and 1984 was the perfect label for this post. To suggest that Hicks should not benefit from telling his story because a person finds him to be ‘unattractive’ is disturbing to say the least. Last I heard we lived in a free country which means that you have the right to choose whether or NOT to read his story, not the right to dictate what others can and cant read (or write for that matter).
I for one would be very interested to see what he has to say about his incarceration in Gitmo for no other reason than to hear his side of the story and I also believe he should be compensated for that – It could be the only form of justice this man sees out of all of this. I’ll be buggered if I’m going to take the information we currently have about the case as gospel, that would just be naive and ridiculous and this suggestion that he should give any profits he makes from his story to the government is just … well, words fail me at this point. The government hung this man out to dry, left him locked in an ILLEGAL prison without trial for 5 years and only decided to do something when it became clear it was hurting them in the polls. And even then they shafted him. I really cant believe people still don’t get just how fundamentally wrong it was for our government to do that to one of its citizens – regardless of the charges against him.
I also don’t understand why the South Australian government would spend thousands upon thousands of OUR money enacting retrospective legislation that is completely archaic and unnecessary and that the public are even buying into this ’should he or shouldn’t he’ bullshit debate. The minute we start entertaining thoughts such as these we open the flood gates for all kinds of censorship.
Let the guy tell his story if that is what he wants to do, let him have the opportunity to set the record straight and plead his case. He was denied that right in court so his only option left is via the media as far as I can see. If you don’t want to read it – then don’t bloody read it and if the guy is a tosser then so be it, that will shine through in his book. But to stop him from writing it is just plain ridiculous and utterly offensive to the principles of Freedom of Speech. end of story.
I agree that Hicks’ treatment was despicable and that his detention was unlawful. No doubt about that.The stupid and ironic thing is that the authoritarian behaviour of the US has now increased his story’s “saleable value”.
Erin, you seem to be suggesting that the government is going to stop him from writing the book. The SA government is not proposing to stop Hicks from telling his story, just proposing to stop him from selling it. From my understanding, he’s free to write or say whatever he wants, just not to profit from it. This is slightly less disturbing, but only a little. A government who enacts retrospective legislation to target one individual is behaving in a way that is against the rule of law.
I do not think the SA government has the power to legislate in order to get Hicks to disgorge his profit. However, I do find the idea of him earning a massive profit by a book or interview distasteful. Granted, his conduct was not illegal at the time he was in Afghanistan. However, at the very least, he wanted to assist and further the aims of a very unpleasant group of people, Al Qaeda, and he wanted to help uphold the Taliban (sexist, homophobic, racist, generally oppressive). I just think there are more deserving causes out there, however badly Hicks was subsequently treated.
If he does want to publish a book or do an interview, whether for profit or not, I certainly won’t be reading it.
It seems to me that this is the proper way to deal with it – by all means, treat him with distaste if you so choose. My difficulty, I suppose, is with the government presuming to make this judgment on behalf of all of society.
It’s a very fine line to walk though – should we really say that people can’t “want” whatever they want, however horrible it might be?
All of this sort of begs the question, though, because really it’s not about guilt or innocence, it’s about due process, and to me this whole publication thing just adds another layer of improperly obtained guilt.
I couldn’t understand some parts of this article hicks in sa – a bill of attainder? at a roll of the dice, but I guess I just need to check some more resources regarding this, because it sounds interesting.