Literary Proceeds Orders

Literary Proceeds Orders are rarely (if ever) used, and the sections are drafted in a similar format to PPO’s. They are made on the basis of depriving people who have made literary proceeds in relation to offending. There is no requirement that a person has been convicted of the offence.

A court may make an order requiring a person to pay an amount to the Commonwealth if:

• the AFP apply for the order;
• the court is satisfied that the person has committed an indictable offence,[1] or a foreign indictable offence[2] (whether or not the person has been convicted of the offence); and
• the court is satisfied that the person has derived literary proceeds in relation to the offence.

Literary proceeds must have been derived after 1 January 2003.[3] The same date restriction does not apply to when the related offence was committed.

Literary proceeds are any benefit[4] that a person derives from the commercial exploitation of:

• the person’s notoriety resulting, directly or indirectly, from the person committing an indictable offence[5] or a foreign indictable offence;[6] or
• the notoriety of another person, involved in the commission of that offence, resulting from the first-mentioned person committing that offence.

Even though the order is called a literary proceeds order, the commercial exploitation may be by any means, including, publishing in written or electronic form,[7] any use of media from which visual images, words or sounds can be produced,[8] or any live entertainment, representation or interview.[9] It is intended that a court may find that a person has commercially exploited their involvement in an indictable offence by any other means where the marketability of the product generating those benefits is related to the person’s involvement in the commission of an indictable offence or a foreign indictable offence committed by the person.[10]

If the offence is an indictable offence, it does not matter whether the benefits are derived in or outside Australia.[11] If the offence is a foreign indictable offence, then a benefit is not treated as literary proceeds unless the benefit is derived in Australia or transferred to Australia.[12]

In determining whether a person has derived literary proceeds, or the value of literary proceeds, the court may treat property that is subject to the effective control of the person, as that person’s property. This includes property that was not received by the person, but was transferred to (or in relation to money, paid to) another person at the person’s direction.[13]

In deciding whether to make a literary proceeds order, the court must consider:[14]

• the nature and purpose of the product or activity from which the literary proceeds were derived;
• whether supplying the product or carrying out the activity was in the public interest;
• the social, cultural or educational value of the product or activity;
• the seriousness of the offence to which the product or activity relates;
• how long ago the offence was committed.

The court may take into account any other matters as it thinks fit.[15]

Quantum of literary proceeds order

The amount that a person is ordered to pay to the Commonwealth under a literary proceeds order is the amount that the court thinks is appropriate.[16]

When determining the appropriate amount, the court must deduct the following:[17]

• any expenses and outgoing that the person incurred in deriving the literary proceeds;
• the value of any property of the person forfeited under a forfeiture order, an interstate forfeiture order, or a foreign forfeiture order, relating to the offence to which the literary proceeds order relates, to the extent that the property is regarded as literary proceeds;
• any amount payable by the person under a PPO;
• an order under section 243B Customs Act 1901 (Cth) (which deals with a limited separate statutory regime of PPO’s in relation to narcotics);
• an interstate PPO;[18]
• a foreign PPO;[19]

that relates to the offence to which the literary proceeds order relates, to the extent that the amount is literary proceeds.

The court has a discretion to reduce the literary proceeds amount that represents the amount of tax paid that is attributable to the literary proceeds.[20]

The court has a discretion to increase the literary proceeds amount if:

• the value of the property of the person forfeited under a forfeiture order, an interstate forfeiture order or a foreign forfeiture order was deducted from the literary proceeds and an appeal against the forfeiture or against the order is allowed. The amount of the increase is equal to the value of the property;
• an amount payable under a PPO, an order under section 243B Customs Act 1901 (Cth), an interstate PPO, or a foreign PPO was deducted from the literary proceeds amount and an appeal against the amount payable or against the order is allowed. The amount of the increase is equal to the amount that was payable;
• in determining a literary proceeds amount, the court took into account an amount of tax paid by the person who is the subject of the order and an amount is repaid or refunded to the person in respect of that tax. The amount of the increase is equal to the amount repaid or refunded.

A literary proceeds order is a civil debt due by the person to the Commonwealth.[21] A literary proceeds order may be enforced as if it were made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.[22] The debt arising from the order is regarded as a judgment debt.[23]

A court may make an order that property subject to a person’s effective control[24] (that being a person who is the subject of a literary proceeds order), can be used to satisfy the literary proceeds order, if the AFP applies for such an order.[25]

Automatic charge on property

If a literary proceeds order is made against a person in relation to an indictable offence, and a restraining order has been made against the person’s property (including property subject to the person’s effective control which has been made the subject of an order under s 168 POCA to satisfy the literary proceeds order), and the restraining order relates to the indictable offence the subject of the literary proceeds order or a ‘related offence’[26]; then upon the making of the later of the orders, an automatic charge is created against the property.[27]

The charge is subject to every encumbrance[28] on the property (other than an encumbrance in which the person the subject of the literary proceeds order has an interest) that came into existence before the charge and that would have priority over the charge.[29]

Discharge of Literary Proceeds Order upon quashing of conviction

If a person’s literary proceeds order is made in relation to an offence but not made in relation to a person’s conviction of the offence, and the person is subsequently convicted of the offence, and then the conviction is squashed, the literary proceeds order is not affected.

If a person’s literary proceeds order is based upon conviction of an offence, and the conviction is subsequently quashed, then the AFP need to apply within 14 days to have the literary proceeds order confirmed or varied, otherwise the literary proceeds order is taken to be discharged.[30]

The court may confirm the literary proceeds order if the court is satisfied that when the AFP applied for the literary proceeds order, the court could have made the order without relying on the person’s conviction that was quashed.[31]

If the court confirms the order pursuant to section 176 Proceeds of Crime Act 2002 (Cth), then the order is taken not to be affected by the quashing of the person’s conviction of the offence.[32]

Literary proceeds orders may include amounts in relation to future derived benefits if the person will derive the benefits and the benefits will be literary proceeds in relation to the offence to which the order relates.[33]

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[1] S 152(1)(b) Proceeds of Crime Act 2002 (Cth).

[2] S 152(2)(b) Proceeds of Crime Act 2002 (Cth).

[3] S 152(3) Proceeds of Crime Act 2002 (Cth).

[4] Defined in s 338 Proceeds of Crime Act 2002 (Cth).

[5] Defined in s 338 Proceeds of Crime Act 2002 (Cth).

[6] Defined in s 338 Proceeds of Crime Act 2002 (Cth).

[7] S 153(2)(a) Proceeds of Crime Act 2002 (Cth).

[8] S 153(2)(b) Proceeds of Crime Act 2002 (Cth).

[9] S 153(2)(c) Proceeds of Crime Act 2002 (Cth).

[10] Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.

[11] S 153(3) Proceeds of Crime Act 2002 (Cth).

[12] S 153(3A) Proceeds of Crime Act 2002 (Cth).

[13] S 153(4) Proceeds of Crime Act 2002 (Cth).

[14] S 154(a) Proceeds of Crime Act 2002 (Cth).

[15] S 154(b) Proceeds of Crime Act 2002 (Cth).

[16] S 158(1) Proceeds of Crime Act 2002 (Cth).

[17] S 159 Proceeds of Crime Act 2002 (Cth).

[18] Defined in s 338 Proceeds of Crime Act 2002 (Cth).

[19] Defined in s 338 Proceeds of Crime Act 2002 (Cth).

[20] S 160 Proceeds of Crime Act 2002 (Cth).

[21] S 167(1) Proceeds of Crime Act 2002 (Cth).

[22] S 167(2) Proceeds of Crime Act 2002 (Cth).

[23] S 167(3) Proceeds of Crime Act 2002 (Cth).

[24] See definition in glossary.

[25] S 168(1) Proceeds of Crime Act 2002 (Cth).

[26] Defined in s 338 Proceeds of Crime Act 2002 (Cth).

[27] S 169(1) Proceeds of Crime Act 2002 (Cth).

[28] Defined in s 338 Proceeds of Crime Act 2002 (Cth).

[29] S 170(3)(a) Proceeds of Crime Act 2002 (Cth).

[30] S 173 Proceeds of Crime Act 2002 (Cth).

[31] S 176 Proceeds of Crime Act 2002 (Cth).

[32] S 177 Proceeds of Crime Act 2002 (Cth).

[33] S 178(1) Proceeds of Crime Act 2002 (Cth).

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