A somewhat shorter version of this article was published in Pearls & Irritations, 1 August 2021
The person called Witness J worked for a government spy agency. He was tried in secret and served time in prison, again in secret. It is against the law to reveal his name.
More well-known are Witness K and his lawyer Bernard Collaery, prosecuted by the government. K’s crime was blowing the whistle on the government’s vastly greater crime in bugging East Timorese government offices in 2004 to gain an advantage in negotiations over undersea oil and gas. No one was brought to justice for the Australian government’s lawbreaking, but instead those who exposed the crime were prosecuted more than a decade later. And for what purpose? One obvious consequence is sending a message to others who might follow in the footsteps of K and Collaery and expose government wrongdoing.
Some years ago, the government passed laws criminalising whistleblowing on national security matters, though they might better be described as laws against whistleblowing on matters that embarrass politicians. Journalists who report on these matters can also be sent to prison. To make this campaign against public-interest activity more effective, the government passed data-retention laws against advice from experts. This means that if a whistleblower phones a journalist, a record of the call is retained, enabling police to identify phone numbers that rang the journalist’s phone. The result is that when trying to expose serious problems, whistleblowers and journalists need to operate as if they are living under a dictatorial regime.
There are other prominent cases, including Taxation Office whistleblower Richard Boyle and war-crimes whistleblower David McBride. These prosecutions signal the government’s willingness to go after those who challenge business-as-usual, regardless of the public interest served by their disclosures. They are the public face of the struggles of thousands of other whistleblowers in all walks of life.
Government and corporate hostility towards whistleblowers is just one part of a wider attempt to stifle dissent. The treatment of asylum seekers shows the lengths to which the government will go to avoid responsibility for its defiance of international law. The most amazing aspect of this cruel policy is that, for the purposes of the Refugee Convention, the Australian government ingeniously excised its entire territory from what counts as “Australia.” Someone arriving on the shores of the continent seeking asylum is unlikely to be aware that, by Australian law, this is not Australia.
Police powers have expanded and been used to shut down public protests. State governments have passed laws to stop animal activists recording and publicising animal cruelty. The federal government is trying to crack down on charitable organisations being involved in any activity for social change.
Labour protest is a special target. Years ago, the right to withdraw labour was attacked by legislation that permits strikes only under carefully specified conditions. Essentially, workers cannot legally take action unless government bodies approve.
The government legislated to allow it to break encryption, despite arguments that this would harm Australian businesses. Electronic Frontiers Australia has documented numerous other ways the government is failing to protect digital rights.
Defamation law has long been a restraint on free speech, with Australian laws being among the most punitive in the world. A few prominent cases are reported in the news while behind the scenes both individuals and media organisations practise self-censorship to avoid the risk of being sued.
These laws and practices are justified as protecting people from danger. Perhaps this is true in some cases, but more often than not they are about protecting the government and its corporate allies from scrutiny and accountability. The cases of K and Bernard Collaery are especially instructive in this regard.
Politicians wanting to expand police powers say they should be trusted. Should they be? The QR code system was set up with promises that it would be used only for pandemic control, but then police acknowledge it was used for other purposes. This example is one of many showing how the government’s own actions destroy trust and thereby undermine the systems they set up ostensibly to protect the public.
What is the diagnosis? Excessive secrecy, corruption, malevolence? Is it budding fascism?
Many concerned citizens and groups, for example the Alliance Against Political Prosecutions, have pushed back against excessive government powers, opposing the expansion and extension of repressive laws. These important efforts have made a difference in preventing even worse outcomes. What else can be done?
Civil disobedience is principled opposition to laws or practices. It can be used directly against unjust laws or indirectly as a method of protest. In Australia, climate activists have taken direct action against coal exports, for example by attempting to blockade ships. This can be considered indirect civil disobedience, because the laws broken, such as those against trespassing, are not the ultimate target of the action.
Direct action against repressive laws can be risky, especially for individuals. We know what happens to whistleblowers. It would be very risky for a media outlet to overtly and intentionally break national security laws. For an individual to do so would also be risky.
There can be safety in numbers. Take, for example, Australia’s draconian laws against communication of information about how to end your life peacefully, in what might be called do-it-yourself euthanasia, independently of any of the voluntary euthanasia laws and without assistance from doctors or others. The Peaceful Pill Handbook by Philip Nitschke and Fiona Stewart, which tells how to obtain pentobarbital and to construct an exit bag, is banned in Australia but is available everywhere else in the world. It is completely legal to construct and use an exit bag, but telling someone over the phone how to do it is illegal, but only in Australia.
To challenge the threat of prosecution for aiding do-it-yourself euthanasia, there has been a system called “Nancy’s friends.” A person planning their own peaceful death invites a group of others to attend the event. This ensures that if anyone is arrested for assisting a suicide, everyone present is culpable. There have been no arrests. It would be bad publicity for police to arrest one or two dozen witnesses, especially given that many of them would be elderly.
Rodney Syme, a doctor and long-time advocate of voluntary euthanasia – but not the do-it-yourself variety – undertook his own civil disobedience by providing drugs to patients enabling them to end their lives, and reporting his actions to authorities. To his disappointment, he was never prosecuted.
Challenging repressive laws could use the same sort of approach. Imagine this. An individual or group pens a statement that, when published, directly challenges one of Australia’s repressive laws. It might, for example, illegally reveal an identity or action. Signing such a statement would be civil disobedience, a direct challenge to a law considered unjust.
To make this safer for signers and more powerful in effect, a larger group could sign. The statement might be set up so that it only becomes public when it has a target number of signatories, maybe 100 or even 1000.
In planning participatory civil disobedience against repressive laws, some inspiration can be drawn from the salt march, a campaign in India led by Gandhi in 1930 that was the single biggest challenge to British colonial rule. The British held a monopoly on salt manufacture and taxed it. Gandhi’s idea was to walk into the sea and begin the process of making salt.
Gandhi’s plan was to have a long build-up to the civil disobedience: a 24-day march to the sea. He led his followers from village to village, stopping to give speeches along the way. By the time the marchers reached the sea, the impending action was well-known across India.
Lord Irwin, the British Viceroy in India, was caught in a dilemma. He could have ordered Gandhi’s arrest early in the march, but this would have triggered popular outrage because Gandhi had not broken the law. But by waiting until the marchers waded into the sea, he allowed it to develop a tremendous momentum.
Applying this idea to a statement challenging a repressive law, it could be carefully composed with all details except for the prohibited information. Signers would accept responsibility for the statement when the number of signatories reached a certain target or after a certain time, at which point the prohibited information would be added. An actual breach of the law would only happen at this point.
Australian authorities might try to intervene to stop such a process, for example by taking legal action against the organiser. Therefore, it would be safer for the organiser of the statement to live outside Australia or be anonymous or both. Internet experts could arrange ways to ensure the statement remained viable and visible.
I remember my experience in the anti-uranium movement. In 1979, the government gave the go-ahead for uranium mining under the draconian Atomic Energy Act, passed in the early 1950s and intended for military uses of nuclear materials. Violating the terms of the act could have led to imprisonment. This excessively repressive law was totally inappropriate for approval of uranium mining.
In 1980, we developed a “statement of defiance” by which signers potentially broke the law by stating their opposition to uranium mining. In downtown Canberra, we invited people to sign — and many did, without the slightest hesitation. Breaking the law had never been so easy. It was unlikely the government ever intended to prosecute anyone who challenged the law, at least not ordinary citizens.
Similar considerations apply to other challenges to repressive laws. Most likely the government will take no action. Possibly the more important function of such challenges is to raise people’s awareness. It is not every day that we sign a statement that theoretically could lead to years in prison.
There is one more thing to learn from the salt march. It was not obvious at the time that challenging salt laws had any potential to mobilise the masses. Gandhi’s genius was to recognise that salt, a substance used by everyone, could become the basis for a civil disobedience campaign.
The most effective way to challenge Australia’s repressive laws and practices is not obvious. There are many possibilities. No doubt some initiatives will fall flat while others will be too risky for a few leaders. The challenge is to figure out and implement a campaign that enables a great many people to join a cause whose justice cannot be denied.
Thanks to Mark Diesendorf, Cynthia Kardell, Kathryn Kelly, Stuart Rees and Tom Weber for valuable comments.
Resisting repression: resources for defending Australian freedoms