Law and protest

Brian Walters, 17 August 2006

In December last year, four untrained, unfunded Christian pacifists broke into Pine Gap to engage in a “citizens’ inspection”.

Despite this being a top secret base, there was no difficulty gaining entry.

Having made their point, they were arrested and charged with trespass and malicious damage (cutting a fence). Fair enough.

But then in April it suddenly became more serious.

They were notified that they were now charged under the Defence (Special Undertakings) Act, which carries a penalty of seven years in prison for entering a prohibited area, as well as 2 years for taking photos in a prohibited area. Only the Federal Attorney-General, Mr Ruddock, may authorise such charges.

They have obtained pro bono advice, but not pro bono representation for their trial starting in October.

It could not seriously be argued that these pacifists represented any threat to Australia’s interests or to the integrity of the Pine Gap base. Yet of course they do represent a threat to the political interests of the Attorney-General. And that’s why it is inappropriate for the Attorney-General of the day, a politician, to make the decision that these peaceful protesters will be subjected to a trial under the Defence (Special Undertakings) Act.

There are other precedents for the use of politically-motivated prosecutions against protesters.

On 12 April 2002 two Greenpeace activists boarded a ship known as the MV APL Jade in Miami harbour. Greenpeace had been made aware that the ship was transporting Mahogany cut from the Brazilian Amazon. This made the cargo an illegal import under US law.

The activists displayed a banner which read, ‘President Bush. Stop illegal Logging’.

Greenpeace hoped the attention would encourage US authorities to inspect the cargo. Instead the activists were arrested. There was no inspection. The ship permitted to proceed.

The shipping company did not sue or prosecute and the activists plea bargained minor charges with the authorities.

More than a year after the action the US federal government prosecuted Greenpeace, indicting the organization on a law created in 1872 against ‘sailor mongering’. This law was originally designed to prevent owners of hotels and bordellos from boarding ships to encourage sailors to their premises.

Greenpeace sought and was granted a jury trial for the prosecution. The Executive Director of Greenpeace John Passacantanto said:
‘We are gratified that the judge recognizes the significance of this case by granting a jury trial…the unprecedented nature of this prosecution has the potential to transform an important aspect of legal and political life in the United States, significantly affecting our right to civil protest. The conduct for which Attorney-General John Ashcroft and his Justice Department seeks to prosecute Greenpeace was, essentially whistle blowing - publicly exposing and preventing violations of US law prohibiting the importation of illegally harvested mahogany wood. The Justice Department’s prosecution of Greenpeace is unwarranted and politically motivated’.

The Judge noted that:
‘This case may signal a change in Justice Department Policy…the prosecution has generated charges that the indictment of Greenpeace is politically motivated due to the organizations criticism of President Bush’s environmental policies’.

In the end, when the prosecution could not define what sailor mongering was, Judge Adalberton Jordan dismissed the case for vagueness – “sailor mongering” did not let the citizen know what conduct was illegal. Greenpeace was left with a massive legal bill and a huge drain on time and resources.

The Greenpeace case is an example of what so often happens –powerful people, confronted by an important message as to how things should change, shoot the messenger.

A well functioning democracy is not limited to elections every three or four years but involves a continuing process of consultation between government and citizens.

Dissenters have a long tradition of contributing to the democratic process. Sure sometimes they can be zealots, sometimes they can go over the top, and we should never legitimise violence as part of the community debate, but usually dissenters have a message that we ought to hear. Often they are prophets. Look at women’s suffrage, something everyone now takes for granted. It was said that this was unnatural, and would lead to chaos. Without the suffragettes who campaigned, protested, dissented, we would not have achieved women’s suffrage, and our democracy would remain stunted.

There is also no doubt that the Franklin would now be dammed if it were not for the hundreds of people who were prepared to sacrifice their liberty in order to stand up for the kind of Australia they wanted.

We have a choice in governing our society – a choice between some having unbridled power – the rule of the despot, the rule of whim, and a society with clear laws which provide checks to the exercise of power - the rule of law. It is the choice between tyranny and democracy.

The rule of law is not about ever harsher laws to reinforce power, but the independent oversight of the exercise of power.

The law should be powerful so that it may curb the abuse of power. But the law often is all too often about reinforcing power rather than controlling it. When that happens, there is something drastically wrong.

The courts have achieved some remarkable justice – look at Mabo.

On the other hand, often the courts are trapped in paradigms that make them reinforce wrongs.

Last August the Blue Wedges coalition approached the Supreme Court to challenge the legality of the government’s “trial” dredging of Port Phillip Bay. Blue Wedges alleged that the dredging would be in breach of the government’s own laws, particularly because it was being conducted without any environment effects statement. The Minister had called for an EES and was awaiting its provision. Section 6(2) of the Environment Effects Act requires that “no works” be carried until the EES has been considered by the Minister. These trial works involved 4 to 5 % of the overall works, and moving 1.7 million cubic metres (a “large” dredging project is regarded as 500,000 cubic metres) enough earth to make an 8 storey high structure stretching from Melbourne to Sydney. 1.2 million cubic metres was to be dumped in the new South East Dredged Material Ground, as to which the EES panel report had expressed serious reservations. The dredged earth was piled up in another place in the bay. There was a possibility that the trial works might affect tide levels and have permanent consequences in itself. The claim by Blue Wedges had, at the very least, real prospects of success.

A challenge like this takes months to be given a full hearing by the Supreme Court. By then the trial dredging would be finished, and there would be no point in the Court ruling on the controversy.

For this reason, the Blue Wedges coalition asked the court for an interlocutory injunction to prevent works until the issue could be fully argued.

In such cases it is usual for the party who seeks an injunction to give the court an undertaking to pay any damages caused by the delay in works if the court ultimately rules against the legal challenge. If you want a court to stop something so you can bring a case, you must be prepared to cover the loss caused if you fail.

In this case, the prospective damages from a delay in the dredging was said to be some $32 million, accumulating at over $300,000 a day. There was no prospect of a community group honestly giving an undertaking to pay such a vast sum, and they sought to be excused from the requirement.

Justice Mandie, relying on the conventional legal approach to these matters, would not excuse them from this requirement, and accordingly would not grant the injunction.

Whatever you think of the merits of dredging Port Phillip Bay, the Blue Wedges case highlights an important gap in our rule of law. If the government is acting unlawfully in this trial dredging, surely the rule of law requires that it be held to account. But how?

The common law assumes that private persons – including community groups - only take court action to protect their private interests. The common law also assumes that the only party who approaches the courts to uphold the public interest is the Attorney-General.

Both these assumptions are now outdated and wrong.

The common law model does not take account of community groups approaching the courts not for any financial interest, but for the public good. It is not unusual for community groups to be in stark conflict with the Attorney-General of the day in doing so.

It is true that the Attorney-General can give his fiat to a community group or individual to take an action if the Attorney deems it to be in the public interest.

But in this case the planning minister – the one who was awaiting the EES, and whose approval of the dredging was under attack, was Rob Hulls – who was also the Attorney-General. There was no way he was going to give his fiat.

On 10th September last year, Scott Parkin, a non-violent peace activist visiting from the United States, was hauled off Sydney Road Brunswick by Australia’s finest, taken to jail, held incommunicado, and then flown out of Australia. He had to pay for his custody and his flight, as well as that of the two security officials who accompanied him. He had caused embarrassment to Halliburton because of his non-violent street theatre, and to the US, but there was no suggestion of any offence being committed or any breach of the terms of his visa. We simply do not know on what grounds he was silenced. Nor does he.

He has challenged the decision to treat him this way in the Federal Court. But Mr Parkin and his lawyers are not allowed to see the evidence against him. They are not allowed to be in court when the government makes its submissions. This is all permitted under the National Security Information Act, a certificate having been signed by the Attorney-General.

Once we reach this stage, where political repression can be unreviewed because a politician says so, we no longer have the rule of law, but the unbridled, unfettered exercise of power – the rule of the despot.

This is not upholding our rights and security. This is destroying our democracy in the name of defending it.

It is appropriate to consider here the revived role of sedition in our laws, following changes made last year.

In 1948, the Attorney-General of Australia, Dr HV Evatt, presided over the United Nations when it passed the Universal Declaration of Human Rights.

While he was away, the acting Attorney-General was Senator McKenna from Tasmania. The Menzies opposition was making much of the supposed softness of the Labor Party towards communists. The Queensland People’s Party (a precursor to the Liberal Party - one of the conservative debaters was a very young Jim Killen) arranged a debate on the topic “that communism is not compatible with personal liberty” - with the intention of setting up communist officials to make pro-Soviet remarks. Mr Gilbert Burns, representing the Australian Communist Party was asked “We all realize the world could become embroiled in a third world war in the immediate future between Soviet Russia and the Western Powers. In the event of such a war what would be the attitude and actions of the Communist Party of Australia?” He answered “If Australia was involved in such a war it would be between Soviet Russia and American and British Imperialism. It would be a counter revolutionary war. We would oppose that war. It would be a reactionary war.”

Pressed for “a direct answer” Burns said: “We would oppose that war. We would fight on the side of Soviet Russia. That is a direct answer.”

Despite unanimous advice from senior lawyers, including the Crown Solicitor of the time – Gough Whitlam’s father – Senator McKenna instructed the lawyers that, notwithstanding the legal situation, he was to lay as many charges as possible and to make the case as big as possible.

Burns was convicted by a magistrate of uttering seditious words, and jailed for 6 months. The High Court refused to overturn the conviction.

In 1950, after the UN intervened to repel the North Korean invasion of South Korea, the Menzies Government prosecuted a communist, W F Burns (a different Mr Burns), for uttering the words, “Not a man, not a ship, not a plane and not a gun for the aggressive imperialist war in Korea.” He was jailed for 9 months.

Sedition, as history has proved, is only a means of imposing political repression. It has nothing to do with protecting the community.

There are several changes effected by the 2005 amendments refurbishing this law. The key points are:

• The maximum penalty rises from 3 years to 7.
• Australia now claims universal jurisdiction – sedition anywhere in the world is punishable by these laws.
• You can commit the offence recklessly
• It is now an offence to urge a person to assist the enemy
  The laws now apply to foreign citizens.

Perhaps most importantly, the "modernisation" of the laws seems to indicate that the government, apparently in the expectation of an increase in seditious activity, now intend to actively enforce laws which had been allowed to fall into disuse.

The only purpose of the law of sedition, as it has been used, is to silence political dissent, to form an instrument of political repression.

We need dissenters. We need those who will speak out about wrongs.

What is secret is often squalid as well. In the dark, men do deeds which run counter to the values they proclaim in public. Powerful men who pay lip service to democracy, if left without scrutiny, may very well take steps to diminish that democracy.

Upholding the rule of law means upholding the place of dissent in our society.