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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:

  • to protect the identity of the ASIO Agent who interviewed Donna and me on 9 December at Pine Gap, and;
  • to conceal from the public any information which connected ASIO to the Pine Gap Joint Defence Facility.

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:

“Thirdly, the actions of the defendants which have been described in full during this trial, indicated that there is no evidence that their actions resulted in any harm or injury to any person either physical or psychological. The defendants did make considerable efforts to signal that they have no means or intention to cause hurt or harm to any individual”.

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:

“My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.” [My emphasis.]

“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.

The practical implications of what I have been saying for the conduct of the trials of direct action protesters are clear. If there is an issue as to whether the defendants were justified in doing acts which would otherwise be criminal, the burden is upon the prosecution to negative that defence. But the issue must first be raised by facts proved or admitted, either by the prosecution or the defence, on which a jury could find that the acts were justified. In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury. Evidence to support the opinions of the protesters as to the legality of the acts in question is irrelevant and inadmissible, disclosure going to this issue should not be ordered and the services of international lawyers are not required.

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.


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News flash

According to ABC News Radio, the Full Court of the NT Supreme Court has upheld the Pine Gap Four's appeal against their convictions, and also refused the Crown's application for a retrial. I shall post a link as soon as one is available.

Congratulations to Bryan Law and his colleagues.

Clarification ... and more

Sorry - it was the Northern Territory's full Court of Criminal Appeal (in the interests of accuracy). Meanwhile, from today's Australian:

FOUR anti-war protesters who broke into the Pine Gap spy base have had their convictions quashed by a Northern Territory court.

Donna Mulhearn, 39, Tim Dowling, 52, Adele Goldie, 31, and Bryan Law, 52, were the first Australians to be charged under the 1952 Defence (Special Undertaking) Act.

The four protesters - from the group Christians Against All Terrorism - were found guilty of using bolt cutters on a high security fence and entering the secret spy base near Alice Springs in 2005.

They were convicted last June and together were fined more than $3000. They had faced a maximum prison sentence of seven years each.

The commonwealth DPP applied against what it said was the leniency of the sentence while the defendants appealed against their convictions.

In the NT court of Criminal Appeal in Darwin today, the full bench unanimously acquitted all four defendants of their conviction under the DSU Act.

Chief Justice Brian Martin said the full bench also declined to order a retrial.

The court will publish its reasons at a later date.

The four are still convicted of minor charges under the criminal code including damaging commonwealth property.

It just goes to show

Bryan's stuck to his guns and won.  Ruddock and his dirty tricks unit would have put them away as heinous criminals.  I wonder if this decision will have any impact on other cases involving Howard-era "terrorists" ?

It's nice to know that when politicians try too hard to bend laws  to fit their agendas, the magistracy isn't going to let them.

A thought for Bryan Law

Donna Mulhearn, Bryan Law, Jim Dowling and Adele Goldie were convicted last year under the Defence Special Undertakings Act for trespassing in a restricted area.

Ms Mulhearn and Ms Goldie have just been released from Darwin's Berrimah Prison after spending time there for not paying their fines.

Mr Dowling and Mr Law failed to pay larger fines and remain in jail.

M Mulhearn says she hopes people will pay attention to the outcome of the case.

"Australians should be very concerned about the way that this has become bit of a witch-hunt, trying to chase down and imprison four Christian pacifists for making a point about war and resisting the war," she said.

Spare a thought for Bryan and Jim, still in jail these people were willing to stand up for their believes and are now paying the price.  Do people who protest in a democracy really deserve to be sent to jail? Are they a threat to our society?

Not Pointless, Alan

Saying sorry is just the beginning of a long process. Listening to the radio over the past few days (mainly ABC National of course) so many complicated tales are being told - kids taken away and brothers told by priests their sister had died when she was working as an unpaid maid for a white family somewhere with a bell around her neck - etc etc. It just goes on and on.

The tales are complex and heartbreaking and so much more intense than the ridiculous rubbish we are treated to by letter writers to newspapers who believe it was all done for their benefit. As for Nelson and Julie Bishop, they are missing the boat completely on this one and being wedged without even a deliberate wedge being applied.

The important thing is - a huge majority of indigenous people wants a "sorry" and that's what counts. 

And as for compensation, they damn well deserve it but it will be another complex process and there is no need to tie it to a symbolic "sorry" day. That's going to be an on-going battle and I bet plenty of QC's will line up to offer their unpaid services for the fight.

As for JH not attending - the surest sign yet of his small mindedness and of how his eleven year reign will be treated as a complete aberration. For a man who thought he was destined to be written into history, it will only be as a footnote.

Extraterrestrial shoot-'em-ups

Anyone seen the reports yet of how Bush is going to use the Missile Shield to shoot down that spy satellite?  I wonder if it's really over the fuel, or that the technology might literally fall into the "wrong hands."

Any bets that Pine Gap won't be assisting in the telemetry?

Even though the US says this has nothing to do with China shooting down that satellite a while back, it's still signifigant that both powers will, after this exercise, have demonstrated their abilities to shoot down things in space.  Allah help the Iranians if they ever do something similar.

The next time something like this happens, perhaps the Aegis-launching AWD's will be afloat, and the upgrades to the "spaceworthy" SM-3s will have been installed.  Then all Washington will need to do is let us know what needs to be done, and with the combination of Pine Gap and the AWD's we'll be able pinpoint and shoot all by ourselves.

The one thing that I've appreciated about such projects is that hopefully we'll end up with a globe defence against falling meteors.   In the meantime though, we might be entering a new phase in controlling "vertical territories."

For example, what happens if the US shoots down this satellite when it's above Chinese skies?  Or Inanian?  Do you reckon that an enemy power might then be interested in knocking out Pine Gap?

In the meantime, a goup of local activists have wandered in and sat on the roof.  No wonder they're annoyed with you, Bryan!

I reckon you'll be ok.  Our magistracy don't seem too keen on carrying out neocon edicts, thank, er, heavens.

I've just realised

When we send up those MUOS military communications satellites (ground station to be built at Geraldton, don't know who's building it, know it isn't Thales because they're asking me) they're going to need protecting.  Eg, if someone goes to knock one out somebody will have to send up some SM-3s to intercept the attack.  Of course, it would be easier to knock our part of the Shield out of the game while it's being constructed in Port Adelaide.  Given that everything hypothetical is supposedly being countered, I wonder if the new Adelaide battalion sends a strong enough of a message.  Perhaps the dockyard is going to need further fortification?  I wouldn't be taking a tinnie in too close once the serious technology starts coming in.. which reminds me, do KBR have that contract.  They handle in-port security for US Navy ships, so they'll be at least consulting.  We don't want a USS Cole-style of event happening here, do we?  I hope not.   Insurers take note!

Oh well, all the wrinkles can be sorted out once Downer gets his consulting business up and running. 

I have a feeling that for a while there those in charge of our intelligence and law enforcement went a little terrorist-crazy.  In a way its ironic, Bryan,  that you and your friends were arrested after you committed a crime, given that now people are in court as terrorists for considering possibilities.  If the authorities considered you a serious threat they'd never have let you get past the fence.

Why isn't Pine Gap better protected? Or is it?

Justin, I don't know what pictures you've seen of me.. there are a couple of tragic shots around the net.   A muso mate of mine was dong a Google Images search of something generic along the lines of "Woomera Missile Projects" or somesuch.  My mugshot came up third.

Still a Nowhere Man

Can someone please tell this F***wit, Nowhere man, wanker, that he is NOT the most important person to be consulted over the “Sorry” apology.


PF Journey, what a pointless exercise the whole "Sorry Day" is. What's the betting Rudd and Macklin get the wording all wrong and the lawyers have a field day with the compensation claims?

No amount of alcohol ...

Justin, while I can agree that Dolly does look comfortable in fishnets and such - far too comfortable, in fact - no amount of alcohol I could consume would lead me seeing him as cute. It is indeed a bit of a worry, Richard.

Enough of the frivolity for a moment, as I wish to give a nod to Bryan. There is the quote by Lord Hoffman:

“My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history.

Unfortunately, acts of civil disobedience seem to be necessary far too often. Lord Acton was right and it is people such as Bryan who have the balls to make stand against the overreaching of authority we need to thank.

What me worry!

Sometimes I do too Richard, but what can you do?

BTW,  I've seen pics of you and I'm sure you are not the type for fishies and heels. I reckon like moi you'd be better off dressing up in a burqa and a very dark pair of sunglasses.

It works for me, when I'm in the mood. 

PS. I lied, I don't worry.

Dolly and his texticles

Bob, Dolly Downer as we know just loves getting dressed up, but you have to admit there was a guy who looked absolutely comfortable (and in his own way rather cute) in fishnets and high heels.

I was told that even Shane Warne sent him a texticle or two.

Richard:  Dolly "rather cute" ?  Some days, Justin, I worry ;)

FreeB Law

Bryan old chap, it is obvious you carried out your illegal behaviour in an honest and transparent manner. You also carried out this adventure to seek publicity for your (good) cause.

Why fight a custodial sentence? Getting thrown in the clink would give you and your (good) cause even more publicity. Then we could organise demonstrations with people carrying banners like " The Law is an Ass -  Free-B Law" or stuff like that.

In fact if I were you I would insist on the death penalty from my total lack of respect for the Law and our good American defenders. I know that you are probably sad that we don't have the DP in this country but with a bit of arm pulling and bribery I reckon we could get you deported to Texas.

We could turn this into something global, could be even bigger than that Corey guy.

PS. If you need a publicity manager just give us a call; of course under the circumstances I would require payment in advance.

An exception.

Justin: "Everyone knows the whole honours thing is a wank, even JH, and I'm sure he even has the cringes about  getting dressed up like a ponce..."

This, of course, would not apply to Lord Downer of Baghdad and Kut.

Bring it on

Alison H I agree with Michael, the thought of John Howard dressed up with plumes sticking out of his scone is an image just too inviting to dismiss.

Everyone knows the whole honours thing is a wank, even JH, and I'm sure he even has the cringes about  getting dressed up like a ponce.

Of course Hyacinth will make damn sure they turn up for the Royal performance.

A cartoonist's delight - indeed.

Bring it on I say; at least we will get a laugh for all the money we will be forking out to keep John and Hyacinth living in the manner they have become accustomed to.

Howard In Garters

We should be applauding Bryan Law and his crew for their efforts on our behalf, although much more study needs to be done to fully comprehend the implications of the governments nefarious tactics and whether anything will change under Krudd.

Allison: somehow I think the idea of Howard parading in those robes and feathers is almost so comical we should be encouraging it. Not only will it further the cause of a republic but  breathe new life into cartoonists' careers.

Personally I believe it's someones idea of a wicked rumour knowing the man's idolising of Menzies. To think HRH The Queen actually relished the idea of entertaining the little twerp is laughable. 


Bryan, we did indeed have to obtain legal advice (thank you Malcolm Duncan), and as a result I have made some changes to your piece. I hope that the main thrust of your argument has not been affected.

All the very best for the hearing.

Nonviolent civil disobedience

I recently submitted a piece for Webdiary about the meaning and implication of the Pine gap actions I took part in during 2005, and which are set to continue on ANZAC Day this year.

The piece hasn't been published for reasons which are unclear to me, but which are, I believe, related to the sub judice rules, and the potential for contempt of Court.

I'd be happy to discuss these issues with anyone from Webdiary.

I'll be going into Berrimah Prison on 13 Feb, after travelling to Darwin, and at this stage the Commonwealth Director of Public Prosecution's fresh attempt to imprison us will be heard by the Court of Criminal Appeal in Darwin on 20-22 February.

There's a mention this Thursday (7 February) in front of the Chief Justice because the Commissioner of the AFP and the Secretary of Defence are seeking to be heard on the cross-appeal (s8 of the DSU).

I was hoping to have a discussion with other Webdiarists about our case and its implications for civil liberties before choofing off to prison ('cos I'm not entirely sure when I'll be getting back out).

Please think about publishing the piece to this end. I'm completely confident there can be no contempt apprehended in the article, and the matter ought to be publicly discussed.

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