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.

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).

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.

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.

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.

on a moral basis that Hicks should not profit from his actions

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 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.