Shouts from the desert

Calls by Senator George Brandis for the Government to take action to strip Hicks of profits from his book involve some risks that Senator Brandis might not have considered. Senator Brandis has suggested two approaches - one involving the Proceeds of Crimes Act, and another involving a condition on Hicks' plea bargain with the United States that he assign profits from any book to the Australian Government.

At first blush the plea bargain approach faces the obstacle that it is doubtful whether Australia has the legal right to enforce that condition in the plea bargain, as Australia was not a party to the plea bargain agreement. I have not fully investigated that, but arguments on that need to be focused on the law, not on the suggestion that it is absurd that the Australian government should have been able to lock up Hicks but not be able to enforce the terms of the plea bargain. The question is a question of law, not of common sense, and those concepts are often at odds.

The more serious issue for the Government is that any action to strip Hicks of the profits will involve an application to a court - an Australian court, not the kangaroo courts of Guantanamo Bay.

If the Government intends to rely on the plea bargain, one of the defences Hicks could be expected to use in response is to allege the plea bargain was entered into under duress in the face of an illegitimate process undertaken illegally by the United States. That might be used to void the condition in the plea bargain agreement. The Government (and the Liberal Party, which when in Government stood by without objecting to that process) is unlikely to want to take the risk of an adverse decision on the legitimacy of the Guantanamo Bay process. Even the ventilation of those issues in a court would entail some embarrassment for both Australia and the United States.

If the Government instead intends to rely on the Proceeds of Crime Act, they will have to prove on the balance of the probabilities that Hicks has committed an indictable offence. One way to do that might be to rely on the Guantanamo conviction, but that runs the same risk as relying on the plea bargain - that Hicks attacks the Guantanamo process in defence. On the other hand not relying on the Guantanamo conviction would amount to a tacit admission that the Guantanamo process may be flawed. Worse still, if the court cannot find on the balance of the probabilities that Hicks has committed an indictable offence, that in itself would imply a serious condemnation of the Guantanamo Bay process, since it would also carry the necessary implication that the offence could not be proved beyond reasonable doubt.

On the other hand, if the Government does not seek to get the proceeds, that may be construed as a tacit admission that the Guantanamo Bay process was flawed.

For the Liberals, that makes this a good time to be in opposition rather than in government.