Why David Hicks must win

It has criticised the lack of any legal foundation for the original charges, the retrospective nature of the charge pursued, and government acquiescence in Hick's detention without charge and trial by the commission. It has criticised the terms of his plea agreement and the imposition of control orders on his release. It issued more than twenty press releases, letters to Parliament and reports, including three reports from its Independent Observer at Hicks' trial.

When the senior body of the legal profession takes a strong public stand on the propriety of government treatment of an Australian citizen, we can be reasonably sure this is not an open and shut case, notwithstanding a relentless focus by pro-government and pro-war opinion writers on Hicks' personal idiosyncrasies. This focus is in part driven by the media, which then reports what politicians and others say; it provides arresting headlines but little if any analysis.

No one is really surprised. Hume warned long ago that man's reason is slave to his passions and we know the reverse is just as true - that his passions are themselves fuelled and guided by ideas. But no aphorism is likely to resolve this question of political morality - whether the government has a right to use legislative means to deprive Hicks of income from his book.

While there is a strong case that it has no moral right, there is a much clearer case that it has no such legal right. The core of this argument - the priority of freedom of speech - is the same; but whereas moral claims must appeal, controversially, to community values, the legal case rests on the Commonwealth Proceeds of Crime Act, under which judicial discretion to make a Literary Proceeds Order (to confiscate assets) must consider the public interest in access to the material.

More importantly, it also rests on a constitutional principle explained by the High Court of Australia in a unanimous ruling destined to be celebrated in textbooks as a triumph of Australian jurisprudence, ranking with leading decisions on rights by the US Supreme Court. This case, well known to media and defamation lawyers, is the July 1997 judgment in Lange v ABC.

The case arose from a defamation action by a former New Zealand Prime Minister, Albert Lange, against the Australian Broadcasting Corporation for allegations made about him on a current affairs program.

The High Court ruled that freedom of political communication is implicit in the system of representative and responsible government outlined in the Constitution. It does not establish a right of free speech, but limits the power to censor what can be said on 'political' matters. The Court ruled that this freedom extends to what is necessary for the effective operation of the system of government provided for by the Constitution, and set out a two-part test:

• Does the law effectively burden freedom of communication about government or political matters?

• If the law does burden that freedom, is it reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of representative and responsible government?

Confiscating income will in principle constrain Hicks' freedom of communication, since the proceeds of sale are ordinarily the only way to recoup expenses incurred in telling his story and defending his reputation, after years of condemnation by the local and world press and by both major political parties.

The second part of this test will be more controversial, but there is no space to pursue the arguments here. What is likely to be crucial is that the issue of public interest - whether legal and political institutions were subverted by a foreign policy allowing wrongful detention and abuse - remains unresolved and, without a formal investigation, Hicks' book is central to this issue.

Readers must ask themselves whether his financial persecution is compatible with the public's right and need to know both sides of this story in order to judge the performance of the politicians they elected; our ability to make this judgment after hearing all the evidence is, in the end, crucial to the maintenance of 'representative and responsible government'.