This is the Paradigm Shift broadcasting on 4ZZZ fm 102.1 This show is called ‘Not Guilty’ and is about political defence – the story begins…
Vale Clarke and Dawe
On Wednesday, 26 June 2013, the Australian Labor Party killed political satire in Australia. After twenty-five years of producing a weekly satirical interview on ABC TV on Thursday evenings, it is rumoured the Australian Broadcasting Corporation have contracted out the segment to ALP spin doctors. Vale Australia’s foremost satirists, John Clarke and Bryan Dawe.
In the light of the new uncertainty in Australian politics, Paradigm Shift has decided to give satire one last chance. Many of our listeners are familiar with the adventures of Homer the faithful mascot of the Aboriginal Tent Embassy in Musgrave Park. We know that in the past Homer has been impounded at the Willawong Dog pound for defending the sacred fire at Musgrave Park.
The story this week is about a visit that Homer paid to Kevin Rudd’s office with members of the Brisbane Sovereign Tent Embassy. The story is titled ‘Not Guilty’.
Our story begins in Kevin Rudd’s electoral office on the 6th February this year, 2013.
The inspector asked Homer to leave … Homer looked left, Homer looked right … there were 14 armed cops between Homer and the outside locked door … there was no way out … so Homer looked at the armed constables to his left and to his right as if pleading with them to help him up (Homer is an old dog) … the cops said Homer refused to leave and so they had to arrest him. They charged Homer with ‘unlawfully remaining in a place of business’. Yes the electoral office of the once-was, now-is Prime Minister of Australia.
So how can this be trespass when there was no way out of Rudd’s office, you see Homer lives in the seat of Griffith, was Homer to be dragged out, arrested or both?
Had Homer made a terrible mistake?
Homer later confessed in court that he was first person from the Brisbane Tent Embassy through the open security door, if Homer was the first, didn’t that mean that his friends from the Tent embassy were obliged to follow him in?
Four months later at the trial, the magistrate ruled that there was reasonable doubt that Homer had refused to leave, given that he looked pleadingly at the constable to help him up so that he could leave.
After this miraculous result, Homer’s friends from the Brisbane Sovereign Tent Embassy came up to his barrister at the bar table and each gave him a big hug. No one thought Homer had a chance of ‘getting off’. Later over lunch, one of Homer’s comrades said: “we’ll have to call that the ‘please-help-me-up-defence'”.
Little did she know then, that this would not be the end of the matter for Homer.
In 1978 I helped produce a booklet titled ‘Not Guilty,‘ it was a guide to defend people on political charges – it was a practical handbook for those who had been charged with street march offences, picketing or associated charges like putting up posters or handing out leaflets or speaking in public.
Those days appear to be with us again – not in the form of a ban on street marches but in different ways like the charges that arose from that visit to Kevin Rudd’s office on 6 February 2013 by members of the Brisbane Sovereign Tent Embassy.
The intent behind the charges is much the same as previously, to prevent political expression.
Our journey to this point has been many and varied. Many of us were informed politically by the killing of a young aboriginal dancer, Daniel Yock near Musgrave Park on 7 Nov 1993 and the murder of Mulrunji on Palm Island on 19 November 2004.
So we marched with others against deaths in custody. During the Criminal Justice Commission’s inquiries into Daniel Yock’s death, Kevin Rudd was a chief mandarin in the Qld Public Service.
Rudd was the Leader of the Federal Labor Party and later Prime Minister after Sgt Hurley killed Mulrunji on Palm Island – we never heard Rudd speak out against these killings. His silence remains a stain of guilt for this once-was now-is Prime Minister, for not only was Rudd in positions of power in the system that kills Aboriginal people in custody and takes away their children but he was and still is the local federal member for the area around Musgrave Park where police killed Daniel Yock.
It is worth going over the events of the visit to Rudd’s office to find out if there are ways to resist attacks on democratic rights. But before I do, I wish to draw the listeners’s attention to Commonwealth guidelines regarding a plea of ‘not guilty‘ by aboriginal clients of the Aboriginal and Torres Strait Islander Legal Service:
“Assistance should not normally be provided for a plea of ‘not guilty’ unless there is a reasonable prospect that the charge may be dismissed. In the absence of a reasonable prospect of dismissal, assistance should normally be limited to a plea of ‘guilty'”
Many may have thought Homer had no chance of winning and so, as Homer belongs to an aboriginal person, Aboriginal and Torres Strait Islanders Legal Service would only give assistance for Homer to plead guilty and take the penalty. Moreover, in the case of the Brisbane Sovereign Tent Embassy there is a blanket ban on the Aboriginal Legal Service providing any assistance associated with the tent embassy.
It is in this light, we speak to any democratic rights activists and to defendants in general. This is intended as an aid to legal and political defence on charges that arise out of legal fiction. After 200 years the high court declared in the Mabo Case that terra nullius was a legal fiction. The High Court merely stated the obvious, that there were already people here when settlers arrived in 1788.
Presently we are awaiting the outcome of the prosecution of community activist Bob Carnegie on charges of contempt of a court order that excluded him from standing within 100 metres of the Queensland Children’s Hospital construction site. We think there are lessons to be drawn from Bob Carnegie’s defence but it is premature to make them here. And perhaps we are not the best people to make them. We, with other supporters and journalists, attended Bob Carnegie’s trial and participated in the rank and file Union Defence group that raised a little money for the striking workers but we did not participate in the ‘community protest’ itself nor in the union negotiations with the contractor, Abigroup. The workers won an enterprise bargaining agreement on site themselves.
Our sole comment on that case is to say that Bob Carnegie and workers at the Qld Children’s Hospital site exercised rights of public assembly won against the Bjelke-Petersen government and partially enshrined in the Qld Peaceful Assemblies Act.
This was never mentioned at his trial even though video evidence demonstrated the peaceful nature of the assemblies by workers wanting no more than an industrial agreement with their employer (AbiGroup).
There are some general lessons that may be learnt from the action at Kevin Rudd’s office and subsequent hearings that took place in Brisbane Magistrates Courts – one of these maters is still to be determined at the time of this broadcast.
Background
The Brisbane Sovereign Tent Embassy has been operating since March 2012. It has raised local and national questions related to how aboriginal people can win self-determination. For a few hours on 16 May 2012 the tent embassy at Musgrave Park in South Brisbane was the focus of national attention as the Brisbane City Council with the aid of 250 Queensland police tried to remove aboriginal people and their supporters and tried to put out the sacred fire. Within hours of opening the new parliament following a landslide defeat of the Bligh Labor government, police arrested 35 people who were charged with obstruction and given a condition of bail excluding them from Musgrave Park until the charges were heard.
All pleaded not guilty and the charges and bail conditions were eventually dropped on 22 August 2012. Since the eviction in May 2012 the tent embassy has engaged in a strategy of non-violent civil disobedience in defence of the sacred fire – a traditional aboriginal ceremony. We do so by conducting tent embassy meetings and the sacred fire ceremony on Deed-of-Grant-in-Trust land in Musgrave Park. This quarter acre block of land was allocated for an Aboriginal Cultural Centre in the late 1990s by the then Attorney General and Arts minister, Matt Foley.
Tent Embassy resistance against the Brisbane City Council has resulted in further arrests under police move-on powers and fines imposed for ‘lighting and/or maintaining a fire in the open air‘ under section 5 of Health Safety and Amenity Local Law Act 2009. The latter are yet to reach court but some are on their way for determination before a magistrate. The activities of the Sovereign Tent Embassy are legal – they include organising conferences on Sovereignty, a Community Garden, a Community Food Bank and other social and community activities. The tent embassy has provided support for people whose children have been taken by State Department of Children’s Services and assisted people under threat of eviction by the Dept. of Housing. For the most part we have represented ourselves in court during mentions and call-overs.
Political Defence
The police are yet to present evidence against the tent embassy over their use of police move-on powers introduced by the Bligh Labor Government in 2006 and called upon now by the Brisbane City Council. There has been one conviction for ‘obstruct police’ resulting in a good behaviour bond. While there has been some discussion of each case by participants there is no co-ordinated political or legal defence strategy adopted by people charged – each defence has been on a case-by-case basis where it is left to the defendant to decide what approach is to be taken i.e. how to plead and whether to seek representation or not.
We do not wish to get into a discussion of individual tactical decisions except to say that such decisions are both political and legal in nature. They involve financial cost and quite a deal of time and some stress. Possible penalties vary from no recorded conviction, a good behaviour bond, a fine, or even jail.
We do wish to argue for the merits of pleading ‘not guilty’ but not to the exclusion of other tactics. In certain circumstances a plea of ‘guilty’ that results in ‘no recorded conviction’ can be an attractive and intelligent option to take. However we wish to demonstrate how and why a ‘not guilty’ plea is desirable as a challenge to the legal and political institutions like the Brisbane City Council, the police, the courts themselves and even legal aid agencies like QPILCH (public interest clearing house) and ATSILS (Aboriginal and Torres Strait Islander Legal Service).
Legal Defence
This is the Paradigm Shift broadcasting on 4ZZZ fm 102.1 This show is called ‘Not Guilty’ and is about legal defence to political charges – the story continues..
To plead ‘not guilty’ requires a legal defence. Such a defence can be found in the nature or elements of a charge. Each charge is a legal fiction, it does not represent the reality of human behaviour but legal concepts entrenched in our legal system. For example, the taking of the land in Australia by the colonisers in the 18th century was based on the legal fiction of ‘terra nullius’. The Mabo case exposed this legal fiction. Another example are fines issued for the lighting of the sacred fire are based on the notion that Brisbane City Council has control of deed-of-grant-in-trust land at the southern end of Musgrave Park and that Brisbane City Council rapid response officers have the right to go onto that land, extinguish the sacred fire and to ask police to arrest people who obstruct them. Members of the tent embassy have argued with authorities from the outset that it is Aboriginal land set aside by government ‘for aboriginal purposes and for no other purpose whatsoever’.
The lighting of the sacred fire is an aboriginal ceremony and it is this act that is protected under the deed-of-grant-in-trust over that section of the park. Health Safety & Local Law Act 2009 was never intended to prohibit the lighting of the sacred fire. That legislation was designed to protect public health and safety. The purpose of that Act was to stop people in Brisbane from burning rubbish in their backyards. This caused unwanted smoke with deleterious effect on clothes hanging in Brisbane’s backyards.
The tent embassy has conducted smoking ceremonies at the sacred fire on occasions like Invasion Day. These ceremonies are ancient aboriginal customs akin to the practice of religious rites. They do not endanger public health or safety. These ceremonies contribute to the well-being of both aboriginal and non-aboriginal people, they are a focus of cultural healing and exchange.
Charges laid by police and Brisbane City Council have been designed to exclude aboriginal people and their supporters from practicing these rites. Carrying on political business on land, traditionally a meeting place for many tribes and clans. It was in this park that the aboriginal struggle for land rights was conducted on a national level during the 1982 Commonwealth Games protests in Brisbane. The 30th anniversary of these struggles were organised and commemorated by the tent embassy and their supporters in 2012.
The original police brief against Homer on the trespass charges contained 14 statements by witnesses the prosecution could call. There was no pre-trial conference with the prosecution. However Homer’s lawyer rang the prosecutor and told him that he would object to most of the witnesses on the grounds that their testimony was not relevant to the charge and was calculated to prejudice the court, it was not probative of the offence alleged. Probative is a legal word meaning ‘seeks the truth’
The prosecutor agreed to reduce the number of witnesses down to 5 people that the prosecution thought necessary to establish the elements of the offence of trespass. These witnesses included an Inspector of police, two arresting officers and at least two of Rudd’s staff – the manager and the receptionist.
Trespass is a legal fiction
This is the Paradigm Shift broadcasting on 4ZZZ fm 102.1 This show is called ‘Not Guilty’ and is about trespass being a legal fiction – the story continues..
It is ironic that the once-was, now-is Prime Minister Kevin Rudd, noted for his saying sorry to the stolen generation, should be the complainant in a number of charges relating to a political protest by members of the tent embassy on Wednesday, 6 February 2013.
That day began badly with then Prime Minister Gillard’s provocation that ‘rivers of grog’ were ‘flowing into remote aboriginal communities’ – a statement made during the annual closing-the-gap speech. Meanwhile in Queensland more and more aboriginal children are being taken into state care.
Under British common law adopted by Australian courts trespass may be an offence against a person or property. The charge preferred by police was ‘unlawfully remaining in a place of business’ e.g. Kevin Rudd’s electoral office at Morningside in Brisbane.
A cameraperson and a bystander were both similarly charged.
On that morning (6 Feb) Kevin Rudd’s office was not open for business, at least not to members of the Brisbane Sovereign Tent embassy.
During the protest Police Inspector Sturgess who was inside Rudd’s office described to his regional superintendent over the phone that the tent embassy visit to Rudd’s office was ‘that radical mob from Musgrave Park.’ Sturgess said ‘they are all typical blackfellas carrying on‘.
What we were doing was complaining about lack of support from Kevin Rudd as local member against the evictions of the tent embassy, the refusal by his office staff to provide an aboriginal flag, the racist speech by the Prime Minister and his personal refusal to communicate with a spokesperson of the tent embassy by phone.
The conduct of Rudd’s staff was both dismissive and belittling.
His office manager claimed to the police inspector that we were that ‘radical mob from Musgrave Park’ who ‘claim to speak for everyone’.
At no stage during our visit to Rudd’s office was there an attempt to engage with us or negotiate some dialogue. When asked by the Inspector, the office manager said curtly ‘they have to go.‘
So the Inspector did what Qld coppers do best – he got about 24 police to Rudd’s office, including 14 armed police inside the office itself. When he appeared in the witness box the Inspector claimed first and foremost this large police presence was to secure the safety of his officers and secondly to look after the safety of the protestors.
It was this action that made the trespass charge difficult to stick. How can you remain unlawfully in a place when the only way out is to be arrested? This occurred to me while I was detained for several hours by police at the Morningside Police Station. I thought about the legal fiction of being in a place where I was not supposed to be, even though it was in my local federal member’s office. If the police presence was to ensure that we leave, firstly wouldn’t we have to be asked why we were there in the first place and then, if this was deemed to be unlawful, to be asked to leave. The Inspector did not bother about the former but did ask us to leave.
Homer looked pleadingly at the Constable to help him up from the floor.
Both arresting officers helped Homer to his feet and walked with him outside and there one constable said she was arresting Homer for ‘breach of the peace‘ – yet another legal fiction.
What peace had been broken? Save for the appearance of 24 armed police in Kevin Rudd’s office carpark?
The use of police resources to stifle cultural, spiritual and political self-determination should be a thing of the past. There are numerous accounts in the Brisbane City Council publications of the significance of Musgrave Park. For local members like Kevin Rudd and Anna Bligh to blind themselves to this is a political mistake that both have/will pay for.
Kevin Rudd’s favourite philosopher, Dietrich Bonhoeffer, claimed:
“The followers of Christ have been called to peace. And they must not only have peace but also make it. His disciples keep the peace by choosing to endure suffering themselves rather than inflict it on others. In so doing they overcome evil with good, and establish the peace of God in the midst of a world of war and hate.”
Yet Rudd’s only visit to the embattled tent embassy in Musgrave Park was at dawn one day in May 2013 – presumably so he would not be noticed by the media. Rudd has spoken out against the possible eviction of residents of the Monte Carlo Caravan Park due to government sell-off yet, not once has he spoken out against the forcible eviction of 60 aboriginal people and their supporters from Musgrave Park on 16 May 2012. Police use the Bligh government’s move-on powers and the bail act to repeat those evictions from the DOGIT land in the southern end of the park.
Discussion
This is the Paradigm Shift broadcasting on 4ZZZ fm 102.1 This show is called ‘Not Guilty’ and is about civil disobedience and the law – the story continues..
Some protagonists of civil disobedience plead guilty to offences like trespass. One such group calling themselves the Bonhoeffer Peace Collective put it this way:
“We indicated that we were pleading guilty, not because we were feeling a sense of emotional guilt – but that we wanted to take full responsibility for our actions.”
Implied in this approach is that the charge of trespass, in this case at a military base in Victoria, is a moral issue where the law itself has created no go zones to the public based on the legal fiction of private property – which is itself a crime against the poor and the dispossessed.
It is an appeal to a higher morality than the military which itself can be a justification for actions that exploit others e.g. the way church missions in Australia exploited aboriginal people by taking away their land, children and culture. Besides it is an appeal to just masters.
Will we learn from this experience?
The police for their part have decided not to accept Homer’s ‘Not Guilty’ verdict and have appealed to the District Court in Brisbane.
Police wish to define the legal fiction of trespass their way. This should not be surprising. Police do not like any challenge to their authority, especially from people ‘behaving like a mob of blackfellas’ as the Inspector characterised us.
We don’t know the grounds of the police appeal and will not do so for several weeks.
Meanwhile aboriginal children are being taken away by the state in greater numbers, people’s incomes are being quarantined, and incarceration rates are higher than ever.
We are looking at a global depression that neither Labor nor Liberal can fix.
The capitalists themselves have taken control of the resources as they have always done. The only difference is now, the capitalist can’t or won’t give us jobs, at least not in sufficient numbers, so unemployment and under-employment are growing.
People may be wondering if Kevin Rudd’s devotion to an obscure German Lutheran pastor, Dietrich Bonhoeffer, the same person who inspired the peace activists in Victoria, has any solution to the poverty and exploitation in the world.
If you think it passing strange that secular Australia now has a Prime Minister who is a devout Christian follower of Bonhoeffer, well think again.
Rudd: Election Day not to be held on Day of Atonement
When asked if Rudd would honour the undertaking by Julia Gillard and call the federal election of the 14th September , Kevin 07 said that there was a problem with that date because it falls on Yom Kippur.
For those that do not know about Yom Kippur , it is also known as Day of Atonement, and is the holiest day of the year for the Jewish people.
I don’t know who should be more offended by Rudd’s response, the ordinary voter or a Jewish person.
[This script was written by Ian Curr for the Paradigm Shift for broadcast on 28 June 2013]