In 1952, the Commonwealth Parliament passed the Defence (Special Undertakings) Act which made it an offence to enter, without government approval, a place used for a special defence undertaking. Such an undertaking was defined as one for the defence of Australia or 'some other country associated with Australia in resisting or preparing to resist international aggression'.
A convicted person could be sent to jail for up to seven years. Before Philip Ruddock became Attorney-General no one had ever been charged under this law.
In 1966 the Joint Defence Facility at Pine Gap outside Alice Springs was established under an agreement between the Australian and US governments. It is a ground control and processing station for satellites collecting signals intelligence around the globe. It is probably classifiable as a 'special defence undertaking'.
At various times, Australian citizens have travelled to central Australia and protested the presence of this US base on Australian soil. When arrested and charged, these protesters have been dealt with by an Alice Springs magistrate for lesser offences such as trespass and wilful damage to property. Rarely, if ever, have the protesters received prison terms. They have been fined or put on good behaviour bonds and urged to go back south.
In 1998, the Howard Government had to renew the Pine Gap agreement. By then, unlike in 1952, there was a law requiring the Parliament to consider the terms of any international agreement. Parliament's Joint Standing Committee on Treaties reported on the unsatisfactory situation with the Pine Gap treaty.
Politicians from both sides of the aisle reported that 'the Department of Defence has sought to limit unnecessarily the information provided to us about the purpose and operation of the Joint Defence Facility to less than is already available on the public record; and to deny the Treaties Committee access to the Joint Defence Facility while at the same time acquiescing in the right of certain members of the US Congress to visit the Facility'.
Those protesting the Iraq War and Australia's participation in the Coalition of the Willing had good grounds for claiming that Pine Gap was integral to the US war effort.
On 9 December 2005 four Christian peace activists including Donna Mulhearn, who had travelled to Baghdad as one of the human shields decried by Alexander Downer, succeeded in breaking through the security fence at Pine Gap to conduct a 'citizens' inspection'. This was an act of civil disobedience — the deliberate breaking of a law in order to protest some other law or policy.
Civil disobedience can be justified when citizens have tried all lawful means to reverse the offending law or policy, when they do not threaten the health or safety of others, when they are prepared to pay just compensation for any property damage caused, and when they are willing to pay the penalty justly imposed by any court. Civil disobedience can be an honourable means of political protest.
Mr Ruddock decided to take firm action against these protesters and for the first time in history authorised prosecution under the 1952 law. The trial judge, facing the same obstacle to information about the nature of Pine Gap as confronted the Australian parliamentary committee, thought she could avoid the problem simply by taking note of the government's certification that Pine Gap was a special defence undertaking, refusing the defence any right to inform the jury about the nature of the Pine Gap operation.
During the trial the four accused ran a blog and their supporters protested outside the court. During the weekend adjournment, they all went to protest again at Pine Gap. Donna broadcast her evidence on the blog complaining that the prosecutor kept her on a tight rein:
'I did my best to point out that my action at Pine Gap was a direct response to my experience of war in Iraq. I held up pictures of my boys at the shelter, of Baby Noura and the other children at the orphanage. I named their names and explained that these are the people I am defending. I talked about the other influences on my action such as my faith, the tradition of non-violent direct action and the fact that I made a promise to the Iraqi people to speak the truth and it was my responsibility to do something.'
The jury convicted the four but the trial judge refused to impose prison terms observing that they were 'very genuine in the cause they sought to espouse'. She imposed fines observing that 'their actions — no matter for what cause — cannot justify the breaking of the law'.
The Commonwealth then appealed against the leniency of the fines, and the accused appealed the convictions because they had not been able to lead evidence about the nature of the operation at Pine Gap. The Court of Criminal Appeal has now quashed their convictions and indicated that no purpose is to be served by a retrial.
Mr Ruddock was hoisted by his own petard. If he had wanted these civilly disobedient protesters to go to jail, he would have needed to provide the judge and jury with details about the purposes of Pine Gap. Parliamentary committees, juries and the citizen's ultimate right to civil disobedience are necessary safeguards for liberty when government is tempted to use the legal sledgehammer to crack the nut of political dissent.
• Pine Gap on Trial
• Conscientious Objection (Thinking Faith 3/3/08)
Frank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University and Professorial Visiting Fellow, Faculty of Law, University of NSW. He is presently the Visiting Presidential Scholar at Santa Clara University, California.
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07 March 2008
Good on you Frank, you're right about the ethics of civil disobedience. But isn't it drawing a long bow to suggest that harbouring Pine Gap equates to sending our boys to Iraq? After all the USA is still our valued friend and ally.
07 March 2008
The government would have done better to have acted under paragraph 12(2)(c) of the Public Order (Protection of Persons and Property) Act 1971 (Cwlth) which says that "a person who ... being in or on Commonwealth premises, refuses or neglects to leave those premises on being directed to do so by a constable, by a protective service officer, or by a person authorised in writing by a Minister or the public authority under the Commonwealth occupying the premises to give directions for the purposes of this section; is guilty of an offence, punishable on conviction by a fine ... "
This and related provisions allow reasonable and legitimate protection of Commonwealth officers and property, without the heavy handedness of criminal prosecution and imprisonment.
07 March 2008
Thanks Frank for posting about this. The Pine Gap 6 (two were not charged as they didn't enter the base) are amazing people who have done well to put Pine Gap back 'on the radar' (if you'll excuse the pun). The legal victory was exciting, but the main aim of the group was always to 'preserve their humanity', and at that they have excelled themselves.
I have often wondered why Australia does not have the tradition of 'divine obedience' (religiously inspired civil disobedience) that is so prominent in the USA and to some extent UK. Any theories?
07 March 2008
Thank you, Frank. I find it difficult to read enough to keep myself informed on issues such as civil disobedience. It is helpful to have articles such as the ones you write to at least stay reasonably informed.
07 March 2008
how wonderful to see that there are some people in this country of ours prepared to stand up and be counted. Wish I had been there with them. Thank you Frank Brenan
07 March 2008
Thanks for this, Frank. My concern, unlikely as it may seem, is for the soul of Philip Ruddock. It seems that he has felt obliged to administer some pretty dreadful ministrations as a Howard minion. The courts are now sparing him the consequences of his actions, even as his former master augments his pension on the US pundit circuit.
14 March 2008
Frank, why have you capitulated to US cultural imperialism? You said 'At various times, Australian citizens have traveled to central Australia and protested the presence of this US base on Australian soil.' If they were Australian citizens using Australian English they would have protested against or about the presence of this US base on Australian soil.
18 March 2008
I wonder when someone will attempt a biography of Philip Ruddock? His crossing to the dark side during the Howard administration has always puzzled me. Did he really believe in what he was doing, or was it simply about retaining power and status? And what price now that all that he gained has been lost?