IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
No. QG 7309 of 1998
In the matter of DAVID C KEENAN
DEPUTY COMMISSIONER OF TAXATION
DAVID C KEENAN
This document, originally filed on 11 September 1998, was amended on 23 September 1998, pursuant to an order made on 16 September 1998.
NOTICE OF APPEARANCE
(Order 9, subrule 3 (1)
DAVID C KEENAN
of 116 BOWMAN PARADE, BARDON 4065, SOFTWARE ENGINEER appears.
NOTICE OF INTENTION TO OPPOSE APPLICATION
(Order 77, subrule 11 (2))
DAVID C KEENAN, respondent debtor, intends to oppose the petition on the following grounds:
1. Bankruptcy Act 1966 Section 52(2)(b) "other sufficient cause". One sufficient cause being that it would violate the respondent debtor's universal human right to freedom of conscience and religion as described in Article 18 of the International Covenant on Civil and Political Rights (ICCPR) which forms Schedule 2 of the Human Rights and Equal Opportunity Act 1986.
DAVID C KEENAN, 116 Bowman Parade, BARDON 4065.
Telephone: (07) 3366 2660
Electronic mail: Dave Keenan [Address removed]
World Wide Web: http://users.bigpond.net.au/d.keenan [URL updated]
2. I am aware that the ICCPR does not have the force of domestic law in Australia, although Australia has signed and ratified it. However recent cases have established that it ought to be considered where domestic law is uncertain or ambiguous (Mabo v. Queensland (No. 2) (1992) 175 CLR at 42; Dietrich v. R (1992) 177 CLR 292 at 321 (Brennan J). It follows that it should also be considered in cases where domestic law allows discretion, particularly since the Australian Constitution contains a section corresponding, at least in part, to Article 18 of the ICCPR. Section 116 of the Australian Constitution states that the Commonwealth shall not make any law for ... prohibiting the free exercise of any religion ....
3. The respondent debtor has a conscientious belief in the immorality of paying, through a part of his taxes, for preparation for the killing of fellow human beings (i.e. military defence), and this belief forms a major part of his religious commitment.
4. The debt judgment that forms the basis for the bankruptcy petition is a clear denial of the respondent debtor's right to manifest his religion or belief in practice (ICCPR Article 18 paragraph 1). The same would be true of the making of a sequestration order against him, since it would enable the Commonwealth to obtain the money in violation of his conscience. Note that he has not kept the money, since the practice of his belief includes ensuring that the money is still spent on defence, albeit nonviolent civilian-based defence. Therefore his freedom to manifest this belief cannot be limited under the ICCPR since it poses no threat to public safety, order, health or morals or the fundamental rights and freedoms of others (ICCPR Article 18 paragraph 3).
5. Another sufficient cause is that bankruptcy would ultimately be an exercise in futility, a waste of public money and merely an instrument of oppression, since the Australian Tax Office (ATO) is the only creditor with an interest in bankruptcy and the respondent debtor has vowed never to allow this money to be obtained by the ATO so long as he cannot be assured that it will not be spent on military defence. Nor will he assist the ATO to seize it. He is aware that his noncooperation may result in a jail sentence. If the money is obtained by the ATO without his cooperation he vows to withhold all of his tax payments in future until he has recovered the full amount, since he considers that he has already discharged his duty to the community by paying the required amount, albeit to the Sacred Earth Nonviolence Community and not to the ATO. He will then continue to redirect the defence proportion of his tax towards research into nonviolent defence and will ensure that he remains without significant realisable assets for the rest of his life if necessary. The failure of the ATO to recover any amounts following their successful petition and a contempt conviction against Dr Robert Burrowes, a similar conscientious objector, should be noted.
6. Another ground of opposition relates to The Bankruptcy Act 1966 Section 52(2)(a) "able to pay his or her debts". The respondent debtor is clearly solvent since he and his wife jointly own land and improvements thereon recently valued at $140,000 for mortgage security purposes, while their mortgage secured loan for the same stands at less than $60,000. Half of the equity, or $40,000, may therefore be counted in favour of the debtor. Payments for this loan have always been made when or before due. The total of all his other debts, including that giving rise to the current petition, amount to less than $10,000. These matters are confirmed in the accompanying affidavit and its annexures as ammended 23 September 1998.
7. I refer the court to the decision of Deane J in Re Sarina (1980) 43 FLR 163 in which his Honour observed at 165 that bankruptcy proceedings are not appropriate in order to compel a recalcitrant debtor who is otherwise solvent to pay a debt which he declines to pay.
8. The matters described in paragraphs 1 to 5 above as relating to Section 52(2)(b) "other sufficient cause", should also be considered by the court in exercising its discretion under Section 52(2)(a) "able to pay".
An affidavit supporting the grounds of opposition is filed with this notice.
This notice is filed by DAVID C KEENAN.
The opponent's address for service is: 116 BOWMAN PARADE, BARDON 4065.
Date: 23 SEPTEMBER 1998
Signature of opponent