JOBNAME: No Job Name PAGE: 3 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3 Articles The art of crime: The application of literary proceeds of crime confiscation legislation to visual art Natalie Skead* and Jani McCutcheon† Proceeds of crime legislation in every Australian jurisdiction includes, albeit in varying terms, provisions targeting the benefits derived from the commercialisation of crime, frequently referred to as ‘literary proceeds’. There is little doubt that these provisions extend to the confiscation of benefits derived from the depiction of crime in written art forms and film. This article considers the novel question of whether Australian proceeds of crime legislation also captures benefits generated from the commercialisation of visual art. In doing so, we build on the emerging scholarship on the confiscation of the literary proceeds of crime. We explore a host of questions relevant to this form of criminal confiscation: What does it mean to ‘exploit’ criminal notoriety, particularly in the practice and commercialisation of ‘criminal art’? When are benefits ‘derived’ from this exploitation? What is the cause of criminal notoriety, and how are criminal notoriety and artistic reputation reconciled? Is the commercialisation of visual art in this context unique? To fall within the scope of the legislation, must the art depict the criminal exploit, or is it sufficient that the notoriety of the criminal conduct confers an advantage on the artist that facilitates the commercial exploitation of the artwork? What if the artwork only partially depicts the criminal exploit? The analysis of these issues is relevant beyond the particular context of visual art and contributes to the scholarship on the confiscation of literary proceeds more generally. Introduction It is not surprising that the depiction of infamy and crime abounds in the arts. Crime sells. But few would argue with the old adage that crime does not — or, at least, should not — pay. Reflecting ‘[t]he moral revulsion engendered by the perception that the [criminal might have] also profited by his crime’1 and as a strategy to combat rising serious organised crime,2 increasingly robust confiscation of proceeds of crime legislation has over the past two decades been introduced across Australia. A principal object of this legislation is to ‘deprive persons of the proceeds of ... and benefits derived from’3 the * Professor, School of Law, University of Western Australia. † Associate Professor, School of Law, University of Western Australia. 1 Arie Freiberg, ‘Confiscating the Literary Proceeds of Crime’ [1992] Criminal Law Review 96, 97. 2 Commonwealth, Parliamentary Debates, House of Representatives, 30 April 1987, 2314. 3 Proceeds of Crime Act 2002 (Cth) s 5(a). This article is based on the Proceeds of Crime Act 2002 (Cth), but analogous legislation exists in the states and territories. See Confiscation of Criminal Assets Act 2003 (ACT); Confiscation of Proceeds of Crime Act 1989 (NSW); 253 JOBNAME: No Job Name PAGE: 4 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3 254 (2018) 22 Media and Arts Law Review commission of offences against the laws of the Commonwealth, states and/or the territories. Each of these crime-derived property confiscation schemes includes, albeit in varying terms, provisions targeting benefits ‘derived from the commercial exploitation of ... notoriety from having committed [a crime]’,4 referred to in some jurisdictions as ‘literary proceeds’. Under Australian confiscation legislation, literary proceeds include proceeds and/or benefits derived by a person from the commercial exploitation of their criminal activity through ‘the publi[cation] of any material in written or electronic form; the use of media from which visual images, words or sounds can be produced; or any live entertainment, representation or interview’.5 Literary proceeds confiscation legislation has attracted criticism, particularly on free speech grounds.6 The very few confiscation proceedings, relative to the numerous examples of literary proceeds ostensibly falling within the legislation, appear to be politically motivated.7 In this article we do not substantively revisit these criticisms of literary proceeds confiscation. Rather, we apply the underlying rationale for introducing confiscation legislation resolving the myriad of issues the confiscation of literary proceeds raises in relation to visual art. While there is no doubt that literary proceeds confiscation provisions apply to benefits derived from the exploitation of a person’s criminal activity in written and oral art forms, including books and films, and other written and oral media, such as magazine and television interviews, their application to visual art is as yet unexplored. This is perhaps surprising, particularly given the number of high profile criminals-turned-artists who are emerging from government-funded prisons and prison art rehabilitation programs. Visual artwork created by criminals, or ‘criminal art’, is carving out a niche in art markets, and generating a plethora of ethical, moral, legal and cultural questions. Amongst these is the uncharted question of whether the financial benefits derived by a criminal for his or her criminal art is confiscable under proceeds of crime legislation: were these benefits contemplated by Parliament when enacting proceeds of crime legislation, or was the anticipated focus solely on cheque book journalism and money-making biographies? If the ambit of the legislation does extend to proceeds derived from the commercialisation of criminal art, a host of questions arise; questions that are Criminal Assets Recovery Act 1990 (NSW); Criminal Property Forfeiture Act 2002 (NT); Criminal Proceeds Confiscation Act 2002 (Qld); Crime (Confiscation of Profits) Act 1993 (Tas); Criminal Assets Confiscation Act 2005 (SA); Confiscation Act 1997 (Vic); Criminal Property Confiscation Act 2000 (WA). 4 Proceeds of Crime Act 2002 (Cth) s 5(b). 5 Ibid s 153(2). 6 Natalie Skead, ‘Hear No Evil, See No Evil, Speak No Evil ... and Read No Evil: Confiscation of Literary Proceeds Under Australian Criminal Property Confiscation Legislation’ (2018) 92(5) Australian Law Journal 1; Richard Ackland, ‘They’ve Paid the Price, so Let Old Lags Write Their Memoirs’, The Sydney Morning Herald (online), 3 June 2011 <www.smh.com.au/federal-politics/political-opinion/theyve-paid-theprice-so-let-old- lags-write-their-memoirs-20110602-1fiqq.html>; Civil Liberties Australia, Submission No 94 to the Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, 18 September 2015. 7 Natalie Skead and Sarah Murray, ‘The Politics of Proceeds of Crime Legislation’ (2015) 38 University of New South Wales Law Journal 455. JOBNAME: No Job Name PAGE: 5 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3 The application of literary proceeds 255 also relevant to the confiscation of proceeds derived from other forms of literary, visual and audio media. What does it mean to commercially ‘exploit’ one’s criminal notoriety? When can it be said that a benefit is ‘derived’ from this exploitation? What is the nature of ‘notoriety’ and how does it differ from other notions of reputation? What is the source of criminal notoriety, and how are criminal notoriety and artistic reputation reconciled? Further, to fall within the scope of the legislation, must the art depict the criminal exploit, or is it sufficient that the notoriety of the criminal conduct confers an advantage on the artist that facilitates the marketability of the artwork? And what if the artwork only partially depicts the criminal exploit? In this article we interrogate these questions by reference to a series of criminal art case studies, with a view to both enriching and extending the emerging scholarship on proceeds of crime legislation generally, and to exploring the unique issues generated by visual art. While the details of Australian statutory literary proceeds confiscation schemes have been discussed in detail elsewhere,8 we provide a brief overview of the legislative schemes before examining the important questions they raise. Confiscation of literary proceeds legislation and its application Provisions directed at the confiscation of benefits sourced in, or that can be traced back to, unlawful conduct, or ‘crime-derived property’, are embedded in the proceeds of crime legislation schemes in all Australian jurisdictions. While the crime-derived property confiscation scheme operating in each jurisdiction is distinct, the benefits caught by the schemes are broadly defined to include property, interests in property, services and advantages, wholly, substantially or partly derived or realised,9 directly or indirectly, as a result of unlawful activity.10 It follows that crime-derived property includes not only the actual direct proceeds of unlawful activity but any benefits that can be traced back to any such activity. Schedule 1 pt2s3oftheCriminal Proceeds Confiscation Act 2002 (Qld) provides the following illustration of the reach of the crime-derived property confiscation scheme in that State and is mirrored in the legislation of other Australian jurisdictions: 8 Skead, above n 6; Lucas Bastin, ‘David Hicks and Australian Proceeds of Crime Legislation: Can He Sell His Story’ (2009) 37 Federal Law Review 313. 9 Proceeds of Crime Act 2002 (Cth) s 329 and Criminal Assets Confiscation Act 2005 (SA) s 7 use the terms ‘wholly’ and ‘partly’. Confiscation of Criminal Assets Act 2003 (ACT)