Schapelle Corby and Proceeds of Crime Laws

Schapelle Corby’s avoidance of the mainstream media following her much publicised recent return from Bali has caused much speculation that she has entered into an agreement with a media outlet to sell her story.

But would Corby be able to profit from her story?

There is a strong framework of seldom used Commonwealth and State legislation that aims to stop people like Ms Corby from profiting from the notoriety they obtain through their criminal actions.

The Proceeds of Crime Act 2002 (Cth) provides the Commonwealth with the power to obtain Court Orders to freeze, transfer or pay to the government any funds or property that the Court reasonably believes to be the proceeds of crime. Such an order can relate to any property that the Court believes is in the person’s effective control or which has been paid or transferred to a third party at the person’s direction.

Section 152 of the Commonwealth Act legislates for orders to be made in respect of ‘literary proceeds derived from an offence’, and amongst other things applies to convictions for ‘foreign indictable offences” (defined as a conviction in a foreign jurisdiction for conduct which would have constituted an offence against a law of a state, territory or the commonwealth of Australia punishable by at least 12 months imprisonment).

Ms Corby was convicted of importing and trafficking 4.1kg of cannabis into Indonesia. In Australia this act could be classified as trafficking and importing a trafficable quantity of a prohibited drug pursuant to the Commonwealth Criminal Code, punishable by a maximum of 10 years imprisonment. Ms Corby therefore satisfies the requirements of a foreign indictable offence.

The Act defines “literary proceeds” as any benefit that a person derives from the commercial exploitation of the person’s notoriety resulting directly or indirectly form the person committing a foreign indictable offence. Commercial exploitation may be by any means, including publishing any material in written or electric form, any use of media or any live entertainment, representation or interview. These proceeds must be either derived or transferred to Australia.

Ms Corby is one of only a handful of people to have been targeted under these laws previously. In 2007, the Queensland Court of Appeal made interim orders freezing payments from Ms Corby’s book publisher to Ms Corby, to her family or to her agent. Similar orders were also made regarding payments from New Idea Magazine to Ms Corby’s sister Mercedes. Final orders were entered by consent in 2009 however these orders allowed Ms Corby to retain some of the monies derived from the sales.

Given the legal framework in Australia it will be very difficult for Ms Corby to obtain financial benefit from her story in Australia. Ms Corby may be able to retain monies that are derived overseas, however she may find it difficult to derive such monies without the media attention she received in Australia. She may be also subject to similar legislation in other countries. In any event, it is undoubted that the authorities will be watching her very closely over the coming months and years to prevent any unlawful profits being retained by Ms Corby or her associates.

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