Into the breach
When six pacifists were arrested in 2016 at the US’s Pine Gap military intelligence facility, the Crown called for custodial sentences. This week the Northern Territory Supreme Court issued them with fines. By Kieran Finnane.
Grainy CCTV footage plays in the Supreme Court of the Northern Territory. It shows a sunlit dry creek bed fringed with slender gum trees in the early morning of October 3, 2016. A man in red walks slowly along the creek bed, turns, and walks slowly back. An Australian Federal Police vehicle arrives, then another, and a number of uniformed officers get out. It is hard to see, through the trees and scrub, the arrest that follows of 44-year-old Paul Christie.
His charge: entering the prohibited area of Pine Gap, the United States’ most important offshore military intelligence facility, about 20 kilometres south-west of Alice Springs. The “peace pilgrim” would later tell the court he had permission from Arrernte elders to be on their
“stolen land”. For some hours he had been praying and singing for their children and children all over the world, suffering as a result of Pine Gap’s “murderous activity”.
By the arresting officer’s account, Christie held his arms out from his sides and voluntarily dropped to his knees. He was about two kilometres inside the western boundary, a cattle fence, within sight of the man-proof inner fence surrounding the “machine of death”, as he called it – Pine Gap’s cluster of satellite dishes and radome-housed antennas. He was holding some flowers and a ceremonial rattle.
For this mild act of civil disobedience, the attorney-general authorised his prosecution under the Defence (Special Undertakings) Act
1952, a procedure normally intended for offences such as treason, espionage and terrorism-related matters, and the Crown would call for a custodial sentence, as it would for his five fellow peace pilgrims, arrested a few days earlier. The Commonwealth would also stalk their trials, seeking to preserve Pine Gap’s shroud of secrecy despite increasingly publicised evidence of its concerning activities.
According to Richard Tanter of the Nautilus Institute for Security and Sustainability, University of Melbourne and Nobel prize-winning International Campaign to Abolish Nuclear Weapons (ICAN), Pine Gap has a critical role in US nuclear and conventional war operations, and in global mass surveillance. Data it collects and analyses are used in US drone attacks, including in countries with which neither Australia nor the US are at war. “This,” says Tanter, “makes Australia complicit in illegal extrajudicial killings or assassinations.”
The five peace pilgrims were detected before dawn on September 29, 2016. They had crossed the cattle fence and begun to climb a ridge known as Mariners Hill. Two of them, Margaret Pestorius, now 53, and Franz Dowling,
20, took from their backpacks a viola and guitar and started to play a lament for the dead of war and drone strike assassinations.
Franz’s father, veteran Catholic Worker activist Jim Dowling, 62, was carrying a poster, a scarifying image of a victim of war. Andy Paine, 31, had a mobile phone live-streaming their action, an act that would attract an additional charge. Tim Webb, 23, was there, like all of them, “putting his body on the line”, in the tradition of non-violent civil disobedience.
They offered no resistance to their arrests. Indeed, the court would hear of friendly exchanges on the night between the older pilgrims and the AFP officer in charge of security at the base: they have come to know one another over the years.
The actions by all six would be described by the Crown as “serious offences, potentially striking at the heart of national security”.
Like Christie, the group of five were spotted on CCTV. The Crown intended to show this footage but, before it could, the Commonwealth intervened. Justice John Reeves, presiding, was not impressed. This was a criminal trial, what status had the Commonwealth in the matter?
Prosecution was handled by Michael McHugh, SC, assisted by a junior and an instructor; the pilgrims represented themselves. Sitting behind the prosecution team and in frequent communication with them were two Commonwealth representatives. Now they were joined by senior general counsel Timothy Begbie from the Australian Government Solicitor.
He was representing the secretary of the Department of Defence and the commissioner of the Australian Federal Police, and could get instructions from the attorney-general. The application to close the court would be in the interest of defence and national security, to avoid revealing the position of surveillance equipment and its coverage.
Reeves was unmoved: no external party can intervene in a criminal trial except in very exceptional circumstances; hearing the application might derail the trial. Refusing to hear it would involve error, persisted Begbie, armed with affidavits and authorities.
Reeves came to the trial with history. Living in Alice Springs in the late ’70s, he had been an outspoken member of a group concerned about CIA activities at Pine Gap. In the lead-up to the trials, the Crown toyed with making an application for him to disqualify himself.
This could have aborted the trials but in the end the issue disappeared, as did the issue of the CCTV footage: the Crown decided oral evidence from police would suffice. But Begbie stayed watchfully behind McHugh until all evidence had been given, his intervention but the latest of the Commonwealth’s hardline responses to any detected trespass at Pine Gap.
In the 1980s, hundreds of protesters who did as much as the pilgrims faced simple trespass charges under Northern Territory law. Convictions led to fines of a few hundred dollars.
The decision to prosecute trespass under the Defence (Special Undertakings) Act, with a maximum penalty of seven years’ jail, was first taken in 2005 when Christian pacifists, the Pine Gap Four, had cut through the inner fence and posed for photographs inside the technical area. Convicted and fined, all of them served time rather than pay. Ultimately their convictions were overturned on appeal. One of the four was Jim Dowling; another was the late Bryan Law, husband of Pestorius.
Their prosecution has had a chilling effect on protest at the base. There have been demonstrations at the front gate and along the access road, including attempted roadblocks, but not until last year were there again known incursions.
When the five pilgrims were arrested and charged under the DSU Act, they were detained in custody before appearing in the Local Court later that day. There, duty solicitor Russell Goldflam, himself a former Pine Gap protester, learnt that bail was opposed. This was extraordinary, he says: “Had the prosecution been successful, the defendants could have been held on remand in prison for over a year before getting to trial.”
Christie pleaded not guilty – “the only thing I could do to respect the integrity of my action” – but he fully expected his conviction, having made substantial admissions and mounting no legal defence. The five, however, did their best under the Commonwealth’s Crimes Act to mount the legal defences of necessity (responding to an extraordinary emergency) and of defending lives. To do this, they had to show both that they believed their conduct was necessary, and that it was reasonable.
They sought, with occasional success, to tender research about Pine Gap’s role in escalating drone-strike assassinations and called as witnesses authoritative figures in the peace movement, Tanter and former senator Scott Ludlam. Reeves finally ruled, however, that this evidence did not meet the bar for establishing the defences and he instructed the jury to disregard it. Their four-and-a-half-hour deliberations suggest this was not easy.
Ludlam’s evidence had faced constant objections on the grounds of relevance, or of breaching parliamentary privilege or hearsay and opinion rules. With Tanter’s, McHugh had worried that it might “inflame the prejudices and emotions of the jury”. In any case it wasn’t necessary, he had said, because the Crown accepted the genuineness of the beliefs of the accused.
This did not stop him calling for custodial sentences for the pilgrims. He seemed to set his jaw during harsh submissions on Christie. When it came to the five, he was less strident, especially regarding the three young men who would be returning to their Catholic Worker house in Greenslopes, Brisbane, where they live in “voluntary simplicity” and offer food and shelter to the poor.
However, for the recidivists, Pestorius and Jim Dowling, similarly committed, the full bite of deterrence would only come with time served, argued McHugh.
Reeves demurred. Sending Jim Dowling to jail would make him a martyr; instead he was fined $5000; Pestorius, $3500; Paine, $2500; Christie, $2000; Franz Dowling and Webb, $1250 each.
The pilgrims have welcomed Reeves’ more level-headed approach but remain committed to drawing Pine Gap’s deadly purpose into the light, by civil disobedience if necessary. The Crown has 28 days to appeal the sentences, as it did
• 10 years ago against the Pine Gap Four.