This month, Felicity Ruby attended two trials at the Alice Springs Supreme Court where two juries found protesters guilty of trespassing at Pine Gap in September 2016. They will be sentenced on December 4, 2017.
The High Court recently struck down Tasmanian anti-protest laws as unconstitutional, reaffirming an implied right of political communication protected by our constitution. Yet Australia remains the only liberal democracy and common law legal system without a bill of rights or legislated human rights act. Those who seek to defend, via protest, citizens’ right to political communication and dissent are forced into costly and stressful court challenges — the latest example having just occurred in the Northern Territory.
Six religious activists — five devout Catholics and one pagan — from Queensland travelled to Alice Springs in September 2016 to mark the 50th anniversary of the signing of the Pine Gap agreement. Despite several hundred people joining protest camps and actions, as well as a conference of the Independent and Peaceful Australia Network (IPAN), only Paul Christie, Margaret Pestorius, Tim Webb, Franz Dowling, Andrew Paine and Jim Dowling were arrested for trespassing.
In two separate incidents, the protesters entered the base with musical instruments, rattles and flowers to pray and play a musical lament regarding the role of Pine Gap in war-fighting in Afghanistan, Pakistan, Yemen and Syria.
Immediately following their initial arrest, the case was thrown out by Judge Daynor Trigg because prior authorisation of the federal attorney-general — required under the Defence (Special Undertakings) Act 1952 (Cth) — had not been obtained. Four months later, summonses were delivered to the six activists, neatly signed by Attorney-General George Brandis.
It is significant that the AG chose to charge these people under the Defence (Special Undertakings) Act, and not simply for trespass under the Crimes Act 1914, which was the experience of hundreds of demonstrators since 1970 when Pine Gap first became operational. In 2007, we saw the first ever convictions under this Cold War legislation overturned, inspiring then attorney-general Philip Ruddock to change the law, a job the Rudd government completed.
Under the 2009 changes, made to “deter mischief makers and those with more sinister intent”, the accused face penalties of up to seven years in jail and $42,000 in fines. It is worth noting that UN Rapporteurs criticised Tasmanian and NSW anti-protest laws, which have maximum penalties of less than one-third of that for entering a prohibited area under the Defence (Special Undertakings) Act.
The accused argued that these penalties are severe and disproportionate, given their peaceful action, their total co-operation and courtesy with police (all caught on video), and their true belief that an escalating emergency was unfolding they felt a duty to stop. In its seven-page sentencing submission at the end of the first trial, the Crown submitted that:
… [the] sentence imposed on the offender must be of such a severity that it will act to deter others from entering facilities such as these — general deterrence looms large. The real bite of general deterrence only occurs when a sentence of full time custody. The Crown submits that a period of imprisonment is the only appropriate sentence in the circumstances.
Despite the severe penalties, the activists chose to plead not guilty, meaning they were entitled to a jury trial in the Federal Supreme Court in Alice Springs, a town of just 23,000, which, it is broadly agreed, is economically dependent upon the Pine Gap base.
Because the protesters self-represented, Justice John Reeves had to patiently — and fairly often — provide procedural assistance from the bench. While he ultimately ruled it irrelevant, Reeves allowed one of the accused to play an eleven minute ABC RN Breakfast interview with former prime minister Malcolm Fraser, which she claimed was pivotal to her resolve and understanding about the criminal role of Pine Gap.
Police witnesses revealed little of what Operation Fryatt, (the randomly chosen operation name responding to the Pine Gap protests) entailed. We learned that it drew police from across the country, several of whom travelled to Alice Springs to attend two weeks of jury trials. Police agent Peter Davey testified that there was no surveillance of protesters prior to their arrival in Alice Springs or during their time there.
The court broke early for lunch the day that 20-year-old Franz Dowling testified, because he cried on the stand about the people that are being killed by drones. At the conclusion of the trial, Andy Paine said, “We are not afraid of jail.” Margaret Pestorius added, “People tell us blessed are the peacemakers. We went to that place to pray. I would be very concerned if prayer for peace is shut down.”
After two weeks in Alice Springs, Reeves set his sentencing decision to December 4, 2017. His decision, then, is important because it will set precedent, potentially jailing peaceful protesters armed with musical instruments, flowers and prayer for years, at a time when Australia’s standing in human rights circles is grim. We will know on December 4 how Reeves will respond to the 86 letters of support from a breadth of organisations and prominent individuals as well as supporters from the general public, begging clemency for the Pine Gap Pilgrims.
Professor Mary Heath of Flinders University has noted that the Defence (Special Undertakings) Act, criticised for its “drastic provisions” in 1952, has only ever been used to charge dissenters, and asks, “Why have small numbers of committed Christian pacifists triggered a response from the Commonwealth so different from that taken to decades of much larger protests, using strategies including street theatre, flag burnings, graffiti and property damage?”