Anyone planning an act of civil disobedience should make themselves aware of all the possible legal risks they are taking.
On Thursday evening, April 10, legal experts from the School of Law and Justice at Southern Cross University and from the Institute of Ethics, Governments and Law at Griffith University, presented a documentary about a young American man who became known as ‘Bidder 70’ when he took civil disobedience action to prevent the sale of wilderness land for use by the fossil fuel industry.
The panel chairperson, Professor Brendan Mackey, director of the Griffith Climate Change Response Program, kicked-off the evening when he said: “I am a scientist not a lawyer. I am here to tell you that climate change is real, it is happening, and it is going to get worse.”
The documentary titled Bidder 70 was a powerful introduction to the issues both of global warming and of climate change action using civil disobedience.
Already convinced about the urgent need for action against global warming, in 2008 Tim DeChristopher attended an auction held by the Bureau of Land Management in Salt Lake City Utah. The auction was for the sale of 22,000 hectares of pristine wilderness for gas and oil leases. Noticing that other protesters were unable to access the auction room, DeChristopher decided to present himself as an authentic bidder, finally outbidding others in the room and thus disrupting the auction.
DeChristopher’s act of civil disobedience was opportunistic, not premeditated: he had no idea what the penalty would be for his action or of how it would impact his life thereafter.
The documentary follows DeChristopher from the time of his arrest to his trial and eventual imprisonment in 2011. The transformation of this passionate young man during these four years from a somewhat naive climate change activist to a leader and powerful public speaker, was remarkable to observe. If you haven’t see Bidder 70, find and buy a copy and share it. The images of mountaintop removal mining in the Appalachia are truly shocking.
As a risk-averse person with a well-developed sense of personal preservation, it amazes me that people like Tim DeChristopher will take the risk of being arrested. I have followed the tweets and stories from Margo Kingston and others on No Fibs, about the many who have taken civil disobedience action at Whitehaven Maules Creek coal mine, and when I see photos of people, some aged 70 and over, who are willing to sit in the heat and the dust, chained to a massive piece of mining machinery, I’m awed.
I imagine the physical pain of sitting in the same position for any length of time, the lack of shade, the inability to bat away flies, or to have a drink when you want. The greater fear for many of course would be arrest, leading to possible job loss and to other as yet unknown consequences. Tim DeChristopher in Bidder 70 likened his action in 2008 to “jumping off the edge of a cliff and building wings on the way down”.
Following the screening of the documentary, a panel addressed the issues raised. It comprised Professor Bee Chen Goh, co-director of the Centre for Peace and Social Justice, School of Law and Justice, Southern Cross University; Professor Charles Sampford, director of the Institute for Ethics, Governance and Law at Griffith University; Ms Jo-Ann Bragg, principal solicitor from the Environmental Defenders Office Queensland (EDO); and Dr Nicole Rogers from the school of Law and Justice, Southern Cross University.
Dr Rogers, speaking first, outlined for the audience the possible defences available to people taking civil disobedience action.
The ‘choice of evils’ defence, also known as the ‘defence of necessity’ had been attempted by Tim DeChristopher’s lawyer but was rejected by the trial judge. This defence presents an argument to the court that the defendant took the action to prevent an even greater evil occurring. Dr Rogers said that this form of defence was used successfully in a civil disobedience case by Greenpeace in the United Kingdom in 2008. Such a defence allows the defendant to call expert witnesses, for example to present the evidence in support of reality of climate change, but there is no opportunity for the prosecution to call witnesses to rebut that defence’s expert evidence. DeChristoper argued that by refusing him the option of making a ‘defence of necessity’, the judge had denied the jurors the opportunity to understand his motivation to act.
Dr Rogers observed that judges often resist this form of defence to avoid the court becoming a political forum, but she said that it is worth trying nevertheless.
Another form of defence put forward by Tim DeChristopher’s lawyers, but also rejected by the trial judge, is the defence of ‘selective prosecution’. In this case, the Defence would argue that the state is selective in deciding who it will prosecute, arguing for example that there is unequal treatment by the state of polluters, as opposed to those seeking to stop them from polluting.
DeChristopher risked a great deal. He was indicted for two crimes that each held penalties of up to 5 years. Dr Rogers noted that in sentencing DeChristopher, the judge was punishing him not just for his initial crime, but because DeChristopher had made frequent public statements that he was not repentant, and that he would take the same action again. He was given a two-year sentence and served 21 months.
As an illustration of action that can be taken within the system, Jo-Ann Bragg outlined a recent case that involved the Environmental Defender’s Office (EDO). The case was launched by the activist group Coast and Country Association of Queensland Inc., which wanted, among other things, the Gina Rinehart backed GVK Hancock mining company to be held accountable for emissions that would be created when the coal it extracts from its Alpha mine, is burned, even if that occurred overseas. Ms Bragg said that expert climate change evidence was provided to the court, and that while the judge was respectful of the scientists putting the evidence, the court concluded that the issue of effective action on climate change is a matter of government policy, and is not within the jurisdiction of the court. (See paragraph 47 of the Court’s Decision)
Ms Bragg said that there have been a number of instances of civil disobedience in Queensland. She noted however that in Queensland, and in Australia generally, “a lot of elements of discretion exist within our justice system”. This can mean, she said, that the police have discretion as to the charges laid. A charge of disobeying a police order carries a much lighter fine than, for an example, a charge of obstructing petroleum activity: the later charge can attract a fine of up to $50,000. Such a charge was laid, but later dismissed, on Queensland activist, Linda Weston, for action she took to block exploratory drilling for coal seam gas.
Ms Bragg said that sympathetic magistrates can take a somewhat more lenient approach to acts of civil disobedience if they have sympathy with the protestors’ motivations. She said however that we should be concerned about moves in various jurisdictions to mandatory sentences which she said can lead to unjust outcomes that are “not responsive to the social issues of the day”. Ms Bragg added later in response to a question, that anyone planning an act of civil disobedience should make themselves aware of all the possible legal risks they are taking.
Professor Sampford reminded us that civil disobedience commenced its impressive lineage (which includes Gandhi and Martin Luther King) with Henry David Thoreau in the mid-1800s. Thoreau refused to pay his taxes because he didn’t want them used to fund illegal wars. He lost his battle.
Professor Sampford said the rule of law applies to public officials in the exercise of their powers: it does not mean that citizens have to obey the law. We all have the right to break the law, but as the old adage goes, he said, “do the crime, do the time”.
But, Professor Sampford said, climate change is a much bigger issue than the tax issue Thoreau was dealing with, or even the issues fought for in the Vietnam War moratorium movement in which he had been involved as a student.
He said those wanting to make an impact should choose their actions, and the nature of the action will often depend on the nature of the system. Civil disobedience only works, he said, in certain types of the societies; they have to be moderately decent. There would no point, he said, in disobedience in a system such as Nazi Germany.
The other ingredient for effective civil disobedience action is having a media that will report what is happening.
Professor Sampford also noted that the most effective forms of civil disobedience are those that can be engaged in by large numbers of people. He observed that the more people involved, the harder it is to process them through the courts. In that sense, he said, Tim DeChristopher’s action provides a bad example, because it was a one-off which could not be repeated by others, and that the other ingredient for effective civil disobedience action is having a media that will report what is happening, because the very point of civil disobedience is to raise public consciousness about the issues and if possible, get them to act too.
He added that while protestors are defying the law, the ultimate aim of civil disobedience should be to change the law, and that this should be a strategic consideration at the outset.
In support of Jo-Ann Bragg’s earlier comments, Professor Sampford made the point that magistrates will often be lenient because they respect the values of those taking action, but for those people who are recalcitrant and appear frequently before magistrates for similar offenses, sentences are likely to become more severe.
The Vicious Lawless Association Disestablishment Act 2013 (VLAD) has been of real concern to people in Queensland who participate in groups that may be involved in civil disobedience. In response to a question Ms Bragg observed that there are no criteria in the legislation defining ‘vicious lawless association’. It is available, she said, to the Queensland Attorney-General, to declare a group to be a vicious lawless association, however both she and Professor Sampford considered it unlikely such a step would be taken in Queensland in respect to a climate activist group, adding that if it were, the decision would be tested in the courts. Ms Bragg made the point, however, that all those planning civil disobedience action should look carefully at the legislation and take care not to be “sucked into the vortex of the VLAD”.
Ms Bragg advised people not to go down the destruction of property route and to ensure that they stay peaceful in their actions. She also commented that there may be a range of other ideas available to activists that will effectively capture the attention of others and which don’t involve breaking the law.Civil disobedience is just one available action, Ms Bragg said, and it is not for everyone.
Asked to weigh-up the effectiveness of working within the system through litigation and policy development, and civil disobedience, Professors Sampford quoted from a Robert Redford movie (Redford is a supporter of Tim DeChristopher) in which’s Redford’s character was asked,
“What’s the best way to take a bridge?”; Redford’s character responded, “Both ends at once”.