|Webdiary - Independent, Ethical, Accountable and Transparent|
A little experiment with civil liberties in Australia
Longtime Webdiarist Bryan Law writes: "Here’s a story I wrote about what’s going on with Pine Gap and the gang of Christian activists I hang out with. The short answer is we’re having fun and gathering in Darwin next month."
A little experiment with Civil Liberties in Australia
In 2005 the Australian government dramatically expanded the security powers of many state agencies as part of the “war on terror”. ASIO and the AFP increased their powers of surveillance, interception, detention, and control over any citizen or non-citizen caught up in the bureaucratic definition of terrorism. The new sedition laws, control orders, and secret pre-emptive detention all seem major threats to civil liberties, dissent, and (dare I say it?) democracy in this country.
On 10 September 2005 Scott Parkin, a U.S. nonviolence activist concerned with Halliburton, was detained and deported as a result of a negative security assessment by ASIO on the grounds of “politically motivated violence”. That matter’s now in front of the Federal and High Courts with Julian Burnside acting for Scott.
In 2008, many Australians are waiting for the Rudd government to inquire into ASIO, AFP and DPP activities during last year’s arrest, detention and deportation of Indian Doctor, Mohammed Haneef. How are the new security arrangements travelling?
Since 2005 I’ve been experimenting with nonviolent civil disobedience in the form a small nonviolent affinity group called Christians Against ALL Terrorism (CAAT). CAAT’s purpose is to spark a campaign which could transform the Pine Gap Joint Defence Facility into an instrument of arms control and peace.
Though I say it myself, the Citizens’ Inspection of Pine Gap is a pretty useful example of interventionary nonviolence in the Anglosphere - in the 3rd Millenium after Christ.
Among other things we’ve rubbed up against ASIO, the AFP, DPP, DoD, and sundry other elements of the new security state. On 20-22 February 2008 The Pine Gap 4 are fronting up to the Court of Criminal Appeal in Darwin as the DPP makes one more effort to have us imprisoned for an act of nonviolent civil disobedience.
The Story So Far
The public campaign started in October 2005 when Webdiary published my article Entering the Gap Between What’s Right and What’s Legal.
On 9 December 2005 four CAAT activists entered the inner compound of Pine Gap, referred to by the Defence Department as the “Technical Area”. At 4.07 am that morning a tiny pulse of alarm travelled around both the Australian and US Defence Departments as Pine gap was put into “lock-down” and a higher state of alert. ASIO despatched an operative. The AFP sent dozens. NT Police ran road-blocks for a while. Donna Mulhearn and Jim Dowling wrote an article about it for Webdiary.
In April 2006 Attorney-General Philip Ruddock signed off on the required consent and four CAAT activists were the first persons ever charged under Cold War legislation – the Defence (Special Undertakings) Act - cobbled together in 1952 out of then sedition and espionage laws, and meant to protect the British nuclear testing at Monte Bello and Maralinga. The legislation was aimed at Communists and Unionists (otherwise known as the USSR). Now being used against CAAT.
In September 2006 Ron Merkel QC, former Federal Court Judge, emerged to offer his assistance on challenging the construction and scope of this curious legislation. Those matters are presently subject to a cross-appeal.
In September 2006 the Director-General of Security (ASIO) took action against us in a closed session of the Supreme Court in Darwin, without us present, and based on a affidavit we’ve never seen. This action sought:
ASIO eventually gave up this attempt, and we settled the matter by consent before trial.
Otherwise we lost all our pre-trial applications on construction and discovery, and went to trial at the Supreme Court in Alice Springs, 29 May till 13 June 2007. The Crown was represented by two Prosecutors. Also present were seven or so people who sat in the gallery in civilian clothes, and who, in my opinion, were there on behalf of the Commonwealth. The Crown won two applications (in the absence of the jury) to restrict the questions we could ask, and the information we could produce. We couldn’t ask any prosecution witness about what Pine Gap did, and we couldn’t refer to any proceedings of the Australian Parliament.
In the end the trial judge rejected our defences, and instructed the jury accordingly. Given our admissions, we were convicted on all charges:- Damage Commonwealth Property; Unlawful Entry of a Prohibited Area; Operating a Camera in a Prohibited Area.
In his sentencing submission Prosecuting Counsel Mr Hilton Dembo said that our actions were contrived, planned and calculated with pre-meditation, were carried out in a clandestine manner - and that they “struck at the heart, or potentially struck at the heart of the national security and national interest”.
Mr Dembo went on to say that none of us showed any remorse or contrition, that there were no prospects for our rehabilitation, and that for reasons of individual and general deterrence we ought be given a prison sentence with actual time served (some months or years). Any suspended sentence ought be partial only.
In her sentencing comments, Judge Thomas refers twice to our nonviolent behaviour, and to the fact that no person had suffered harm or injury of any kind as a result of our actions. Mr Dembo conceded the absence of any victims in his own sentencing submission. In giving her reasons for not imposing a custodial sentence, Judge Thomas said:
The Commonwealth Director of Public Prosecutions has appealed against the leniency of the sentence, and is once again seeking a sentence of imprisonment with actual time served. We’re in front of the Court of Criminal Appeal in Darwin between February 20 and 22 2008.
What this journey so far tells me is that “the Commonwealth” (in this case ASIO, the AFP, the DPP, and the DoD) is seeking to increase the criminal punishment for civil disobedience in what can only be an effort to curb political dissent.
In achieving this ASIO has managed to define nonviolence and NVDA as “politically motivated violence” They deported Scott Parkin for teaching nonviolence. They’re trying to imprison us for practicing it effectively. Welcome to Alice in Wonderland!
I’ve decided to use the appeal as an opportunity to advocate for judicial recognition in Australia of the nature and special circumstances of civil disobedience crimes, and the kind of sentencing regime which ought to be applied to same in a civilised democracy.
I couldn’t find an Australian equivalent, but in September 2006 the UK House of Lords in R v Jones considered several issues of law related to civil disobedience/disarmament incidents in England in 2003 during the build-up to the Iraq war.
At para 98 of his judgement Lord Hoffman starts a discussion on civil disobedience with:
“It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind”.
The notion of a civilised community had arisen in our trial before, when our defences of necessity, self-defence and lawful authority were ruled out by the judge, on application from the prosecutor.
The judge accepted then that in a democratic society the citizen was required to use the responsible authorities to deal with any crime or emergency being committed, or about to be committed. Even if the responsible authorities refuse to act, breaking the law and defying government authority can never be an objectively reasonable course of action, and therefore our defence fails irrespective of the facts. Judge Thomas cited R v Jones in her reasons, and in particular Lord Hoffman at para 94.
OK. I can accept that. But fair’s fair! If I’m going to lose my defence to meet set standards of civilisation, then I want and deserve the benefit of those same standards in sentencing when convicted.
In our case Lord Hoffman’s convention on civil disobedience was adhered to by the activists and the court. We gave advance notice, minimised disorder, showed proportion and restraint. We were a transparent, nonviolent group of activists who had notified authorities in advance, offered to cooperate in maintaining the peace and public order, and who’d given undertakings not to damage property other than fences. Striking at the heart of the national security? Ho! Ho! Ho!
At the very beginning of the trial the prosecution had applied to the court to have we four defendents placed into what amounted to house arrest for the duration of the trial because “they” had received “intelligence” that we planned public political activities. Their “intelligence” included a letter I’d sent to Mike Burgess, Deputy Chief of Pine Gap, and Officer in Charge of the Prohibited Area. A senior civilian DoD bureaucrat. The letter contains an undertaking to be nonviolent in our actions.
In my view the Commonwealth and the Crown have little knowledge about, and an unreasoning fear of civil disobedience as political dissent, and find themselves unable to meet the key benchmark of civilised democratic behaviour identified by Lord Hoffman: “It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind”.
Lucky it’s not the government, but the Australian people who are the real guarantors of Australian civilisation and democracy. Rise Up!
It’s timely to ask whether the new ALP government is going to review security issues and restore a sense of proportion when it comes to protecting and defending the civil rights and liberties of Australian citizens. Rise Up!
For chapter 2 of the Pine Gap transformation I’ve begun a correspondence with the new Minister for Defence, Joel Fitzgibbon. CAAT is going back to the sacred compounds of Pine Gap on ANZAC Day this year. Read that letter here.