In defence of civil disobedience
Sally McManus has stirred the dragon. The new secretary of the Australian Council of Trade Unions made the mistake of upholding, as an essential part of democracy, the right of citizens not to support “bad laws”. She has rekindled the debate about how compliant we should be when a government acts contrary to the public interest. In the outrage that has followed, much has been forgotten.
Take the events of 1982 and ’83. In one of the most stable democracies on Earth, 1500 Australians were arrested and 500 locked up in Hobart’s Risdon jail for peacefully breaking laws that made it illegal to “lurk, loiter or secrete” in the Franklin River rainforests as bulldozers were barged upriver to begin work on the Gordon-below-Franklin dam.
A jaunty song reverberated through the prison, with the line, “We’re gunna lurk, loiter and secrete…” For the hundreds of first-time offenders filling the prison, the song raised spirits. It also ridiculed then premier Robin Gray’s laws, which had been rushed through the Tasmanian parliament so fast and shoddily that the prosecutions failed and all the charges were eventually dropped.
Bob Hawke’s federal government was elected in March 1983 and legislated to protect the Tasmanian Wilderness World Heritage Area including the Franklin catchment. The High Court found Gray’s dam works were illegal and the Franklin was saved. The right of politics was apoplectic.
These days, the Franklin, which offers one of the world’s top whitewater rafting adventures, is an icon for the island’s job-rich tourism industry. Tasmanians escaped a $2 billion debt for building the unnecessary dam and few remain who think the hundreds who defied the law by joining the pivotal Franklin blockade should not have done so.
At the core of the success of the Franklin blockade was its peacefulness. Had it been violent, it would have lost public support and failed.
A decade later, in 1994, Rodney Croome, Jason Rostant, Roland Sinn and Richard Hale gave themselves up to police by detailing that each had had sex with other men contrary to Tasmania’s Criminal Code, which carried penalties of up to 21 years in jail for such a “crime”. Lesbian activist Lavinia Savell also turned herself in, confessing that she had aided and abetted Rostant by letting him have gay sex in her house.
Conceding that there are times the law should be overlooked, the director of public prosecutions, Damian Bugg, QC, filed a report to the police prosecutors stating there are “instances where ‘alleged criminal conduct’ should not, in the public interest, be prosecuted. This is one of those cases.” The DPP noted that the “conduct was in private and there was no risk of any member of the public observing it”. It was the law, not the courageous citizens defying it, that was bad. Here was a law that had only a few decades earlier carried the death penalty. Now it was both absurd and damaging to society. Shortly after the campaigners’ revelations, it was repealed.
Another Tasmanian law, frequently honoured in the breach, and which survived almost as long, had made it illegal for men to dress up in women’s clothes, though only in the hours of darkness.
Making a stand against what a citizen perceives as a bad law is an equal prerogative across the spectrum of a democratic society.
In 1989 Tony Barrass, of Western Australia, was the first Australian journalist jailed for refusing to reveal a source of information. In 2005 Herald Sun journalists Michael Harvey and Gerard McManus also stood by the Australian Journalist Code of Ethics and refused a judge’s direction to reveal their source for information about federal government cutbacks to veterans’ entitlements. They faced potential jail sentences and were fined $7000 each. Their stand was followed by hedging amendments to the law, so that judges might more readily use discretion in cases where journalists “shielded” their sources.
Although the Australian Press Council had ruled that Gerard McManus had engaged in “irresponsible journalism” when misrepresenting me and the Greens’ policies prior to the 2004 federal election, I supported the two journalists and the integrity of their stand.
Which forces the question: On which side of the law are all those investigative reporters whose livelihood depends upon assisting public servants to illegally leak information? Surely none of them would question others who might judge that a law is second to the public interest?
Never mind, The Australian newspaper went into orbit after Sally McManus, when asked about the CFMEU and illegal union activity, told ABC TV’s 7.30 that “I believe in the rule of law where the law is fair and the law is right. But when it’s unjust, I don’t think there’s a problem with breaking it.” Under the editorial headline “Reckless assault on rule of law”, the Murdoch flagship raged that McManus had “no excuse for trashing the rule of law as a concept … with the risk that the rule of law collapses, giving way to disorder and brute force”. Her comments, the editor warned, “are also dangerous for the Labor Party”. For that, read that The Australian intends pillorying Labor to the next election for McManus’s opinion: it is into hounding and bullying those whose opinions do not fit with its Murdoch manifesto.
But this is despite the Murdoch empire’s own sorry record of breaking the law in a way that damages rather than advances society. At least the ACTU can point to a long history of illegal workers’ actions, including strikes, which have made Australia a better place for all of us by achieving, for example, the eight-hour working day, long service leave, the saving of Sydney’s heritage including The Rocks through the 1970s Green Bans, and the refusal to load pig iron for shipment from Australia to Japan in 1937-8 as the war clouds were gathering.
Never mind Murdoch’s global editorial support for the illegal invasion of Iraq in 2003 or labelling refugees as “illegals”, not because they are breaking international laws but, rather, to rob them of their rights under those laws.
McManus had not “trashed the rule of law as a concept” unless that is what Rosa Parks, Nelson Mandela and Mahatma Gandhi, who disobeyed laws which were manifestly wrong, were doing in their own times.
Where the bounds of acceptable civil disobedience in a democracy lie is a debate that will be with us so long as times change and society transforms. Implying, as The Australian does, that civil disobedience against bad laws has no place at all takes our country closer to autocracy than most citizens would want to go.
Successive conservative and progressive parliaments in Australia have introduced and repealed laws to curb corruption by corporations and unions involved in the construction industry: the dispute at the heart of this is that the laws involve draconian policing powers that would not be tolerated if applied to the rest of our society. Opponents point out that the police already have ample powers to deal with thuggery and criminality.
Like anyone else, McManus has a right to put her point of view. That her comment sent some scribes into orbit raises the more worrying issue of public debate being stifled by the bullying bellicosity of right-wing shockers. With that bellicosity comes proportionate hypocrisy.
In 2011, Andrew Bolt was convicted of breaching the Racial Discrimination Act in two articles that, the judge found, “would have offended a reasonable member of the Aboriginal community”. The court ruled that Bolt’s articles contained factual errors and were not written in good faith. Bolt did not apologise. However, a leader of the nine Aboriginal plaintiffs, Pat Eatock, said after the judgement “we will, I hope, get some sort of acknowledgement through the press that what he wrote was unacceptable, totally unacceptable. He set out to offend from the word go and in fact he acknowledged that in his evidence.”
What Eatock and her fellow Aboriginal plaintiffs got instead was a tirade of indignation from the right. It rushed to Bolt’s law-breaking defence. Tony Abbott warned against restricting “the sacred principle of free speech … the right of people to say what you don’t like”. So now the Turnbull government is working on amendments to the Racial Discrimination Act to ensure there is no problem should Bolt repeat his racist diatribe.
Legislating for freedom of speech while protecting people from the damaging psychological trauma of discriminatory accusation and invective may be for the wisdom of Solomon. Would The Australian or Tony Abbott stand up for the law or a homophobe who refuses to bake a cake for a gay couple? Should men be allowed to scream at women outside abortion clinics? Is the parable of the good Samaritan no longer valid? And what has happened to the golden rule?
There will always be a subject of contention, prone to subtle law changes and challenged by people who feel the lawmakers have gone too far one way or the other. Australia should follow the lead of most similar countries and stabilise the process through a bill of rights.
However, the self-righteous and immature thunder from The Australian and some of its stablemates serves to stymie a healthy debate on the role of civil disobedience and its long history of improving the world for all of us.
The right’s double standards on breaking laws reached a new low in 2014 when an environmental compliance officer in New South Wales was shot dead in the course of policing the state’s environmental laws. Andrew Fraser, the National Party’s member for Coffs Harbour, described the killing of the public servant as “a tragic event that I think has been brought about by bad legislation”. Barnaby Joyce, then deputy leader of the Nationals, explained after the horror of the crime that “people who owned a certain asset, this time trees, had it taken off them by the government without payment and it created animosity towards the government”.
Individuals who break laws that they believe are unjust must intend no violence and be prepared to face the consequences of their actions.
Peaceful defiance of bad political decisions rattles the right, which wants to silence liberal dissent, quaintly disparaged these days as political correctness, because such defiance also has a history of curbing the power of the powerful, the would-be autocrats of the free world.
One of the most salutary political images of the past century is that of the unknown man who clutched a plastic shopping bag as he stood in the way of a line of tanks after the Tiananmen Square massacre in 1989. This lone Chinese activist became one of the most inspiring law-breakers in human history. The Australian’s editorial would have stopped him.
Back in Risdon prison in 1982, friends sent me a copy of H. D. Thoreau’s 1854 book of communion with nature, titled Walden and subtitled “and an essay on civil disobedience”. Seeing the latter, the authorities confiscated the book. Next day, the Franklin protesters were ordered to attend the prison theatre to watch, with all the other prisoners, the unexpurgated version of the blood-lust film Caligula. Those of us who objected were threatened with solitary confinement. It was a memorable lesson in how autocracy needs no reference to logic or fair-mindedness in dictating what everyone else should see, hear or think.
This article was first published in the print edition of The Saturday Paper on Mar 25, 2017 as "Dam wars and Oz police". Subscribe here.