History of my
conscientious objection to
the military use of my taxes
Dave Keenan, 11-May-99
Nonviolent Defence and Tax Resistance Resources
My reason for what I am doing is very simple:
I am a conscientious objector. In time of war, the Defence Act allows me to avoid being involved in war in any way, because this would be in violation of my deeply held beliefs on the immorality of killing fellow human beings. To me it would be equivalent to murder. In the case of actual murder the law recognises, as I do, that to pay someone to kill on your behalf is also murder. However the Tax Assessment Act forces me to pay, through my taxes, for the whole of my working life, for weapons and for the training of soldiers etc.
In 1989/90, after this was brought to my attention, I decided I could no longer continue to pay the defence proportion of my taxes (approx 10%) to the tax office and hence to the Commonwealth Government. Inspired by the example of Robert Burrowes I decided to redirect it to organisations working for peace, and later more specifically for research into nonviolent civilian-based defence. I am lucky to be self-employed, since this would be almost impossible as a PAYE taxpayer.
I sent my first letter to the tax office regarding my conscientious objection. I sent $3000.00 to the Peace and Development Foundation Inc. I estimated this to be 10% of all the tax I had ever paid.
Received this letter from the tax office. I phoned Mrs Dawn Swinbourne and explained my situation.
I received a Plaint and Summons (No. 022990/90) in which the Deputy Commissioner of Taxation claimed an amount of $3231.78 plus costs.
I filed an entry of appearance and defence and heard nothing further in regard to this plaint until I raised the matter in my letter of 6 December 1997.
Second letter to the tax office. Sent $97.69 to the Peace and Development Foundation Inc.
Third letter to the tax office. Sent $880.63 to the Peace and Development Foundation Inc.
The Peace and Development Foundation Inc. was closed down and I directed that my deposit be given (as a straight donation this time) to a new organisation, the Sacred Earth Nonviolence Community, 48 Ingrow lane, Daylesford VIC 3460. My subsequent redirected taxes were donated to this organisation which includes Dr Robert Burrowes.
Fourth letter to the tax office. Sent $1224.14 to the Sacred Earth Nonviolence Community for a total of $5202.46 in redirected taxes. Here are the receipts.
Received a phone call from the tax office debt collection department encouraging me to pay up and briefly attempting to convince me that I needn't worry because the Australian Defence Forces do lots of good things, like Bougainville. Faxed a followup letter to the tax office Debt Collection Department.
Received a letter from the tax office saying that they were looking into the matters raised in my letter of 6-Dec-97.
Received a Plaint and Summons (No. 29404/97) which on 10 December 1997 claimed an amount of $11143.71 plus costs. The $11143.71 was said to consist of $8790.59 in income tax and $2353.12 in additional tax for late payment and penalty interest.
Received a fax from the tax office which contained much legal discussion and a statement of account from 1990 to the present, followed by a copy of a Notice of Discontinuance of the current plaint against me (see 1998-Jan-25 below for the confirming letter). I was elated about the Notice of Discontinuance and told Janelle. I then phoned Peter Chapman (the ATO contact officer for my case) and asked why he bothered with all the legal stuff when they were discontinuing the plaint. He said that they were only discontinuing the1990 plaint. I said "But the number on it is for the 1997 plaint". He apologised profusely for the mistake, but I said "Don't apologise, it's fine by me". He said, "But it won't have gone to the Magistrates' Court yet. I'll have to retreive it and change it" or words to that effect. I'm sure he felt quite bad about putting me thru such an emotional roller-coaster.
If only I hadn't been so bloody observant or so bloody curious! Ah well, it would only have delayed things a bit anyway. But I couldn't help thinking that this had been a Freudian slip.
Mailed an Entry of Appearance and Defence in triplicate to Magistrates Court Registry with the three words "Freedom of Conscience" for the grounds of defence.
Received this letter from the tax office confirming the fax they sent on 23-Jan-98, but with the copy of the Notice of Discontinuance changed to show the 1990 plaint number and a letter asking me to return the incorrect one (which I did).
Received a Judgment Summons, with an affidavit (sworn written statement) from the Deputy Commissioner of Taxation saying to the court, among other things, "In my belief there is no defence to this action and the entry of appearance and defence has been given for purposes of delay." This means I don't get to appear in a public courtroom, only in the magistrates chambers, and I don't get to speak in my defence unless the magistrate decides he wants me to. I am however allowed to submit an affidavit.
I completed the affidavit I would use in the upcoming Summary Judgement hearing. Affirmed and signed it before a JP, registered it at the Magistrates Court and served a copy on the Tax Office.
Appeared in the Brisbane Magistrates Court at 9:15 am to show cause against the Judgment Summons. Janelle, Hunter and Tara (my wife and children) and Rick Gluyas (my uncle) accompanied me. Three people attended from the tax office. The most useful aspect of the morning was getting to meet the tax office staff. Because it was a summary judgment it was heard in chambers (the magistrate's office) with only myself and the legal representative of the tax office. The others waited and chatted with my family in another room.
The magistrate said that I had wasted my time preparing the affidavit since it contained no matters of law with bearing on the case, only my beliefs. I said that I realised that but felt that it was important to put my reasons for what I am doing on record. He said "That's up to you", and of course he entered judgment against me.
Received this unsigned letter from the tax office telling me they will issue a bankruptcy Notice on 12-Jun-98.
Mailed letter/video packages to various federal politicians. It may have been a mistake but I mailed them to their electorate offices rather than their parliamentary offices since parliament was not in session. In the case of the Treasurer I mailed it to his ministry office at 4 Treasury Place, Melbourne.
Met Senator Bob Brown at a private Queensland Greens gathering prior to the state election. I talked to him briefly about what I was doing and showed him the Brisbane Extra video. He offered to ask questions in the Senate, of the Treasurer.
Had a phonecall from Senator John Woodley offering to table a notice of motion of support and to arrange media at an appropriate time. I eagerly accepted.
The following articles were published in Nonviolence Today #58:
Conscientious Objection to the Military Use of my Taxes and the related article by Dr Mark Hayes: Who Breaks a Butterfly upon a Wheel (including my reply).
Received this thoughtful email from the Hon Arch Bevis MP, my local federal member (Brisbane) and Shadow Minister for Defence. Due to some confusion it came via Mark Young, the Social Responsibility Advocate of the Uniting Church in Queensland.
Received this letter from the Attorney General, the Hon Daryl Williams AM QC MP. He says "I have no power to intervene in this matter". This is a little hard to understand when his portfolio responsibilities include:
Australian Government Solicitor (who is presumably advising the tax office on my case)
A bankruptcy notice from the tax office was served on me at home at about 7pm. The process-server looked bewildered when I accepted the bankruptcy notice without fuss and asked her to wait while I got her a copy of Nonviolence Today magazine (NvT #58), so she could read about what she had been involved in. She thanked me and left. I didn't sleep very well that night.
Received this letter from The Department of the Prime Minister and Cabinet.
I replied to the Hon Arch Bevis MP with this email.
Had a phonecall from Bill Greaves of Senator Andrew Bartlett's electorate office, seeking more information.
Bill Greaves phoned back to say that he had spoken to Senator Bartlett and Vivienne Winters of Senator Woodley's office. He said he would still be briefing Senator Bartlett on my case but that Senator Woodley's office would handle it. I said I understood and that it was fine with me.
I received another carefully considered email from Hon Arch Bevis MP, and replied with this email.
Sent this email telling supporters and potential supporters about the web site and asking again for letters to the Treasurer.
Another email from Arch Bevis (talk about rapid response!) asking me to phone his office to arrange a meeting.
Had a short but delightful lunch with Ian Dearden (lawyer) at Café Prego on North Quay near the law courts. I practiced wearing a suit and tie. Ian is a generous man and extremely busy (his own wife has to send him faxes). Ian understands very well the moral and political dimensions of my case but has no experience of bankruptcies. He gave me some sound advice for dealing with the media and representing myself in court, and referred me to another lawyer, Paul O'Shea of the Financial Counselling Service of Queensland. He also gave me some media contacts and phoned Fran Metcalf of the Courier Mail, and told her about me. I visited the Federal Court registry and found out that some bankruptcy cases would be heard next Wednesday.
Spoke to Paul O'Shea on the phone and made an appointment for Thursday. I learned from Paul that most bankruptcies do not require any decisions on matters of law and are conducted before a registrar rather than a judge; and so watching them would be fairly unenlightening in my case. He also said that after the Bankruptcy Notice expires I will get a Creditors Petition, giving me another 28 days or so.
Visited the Brisbane Federal Court anyway (suit and tie again, this could get to be a habit). I was too late for the bankruptcies before the registrar anyway, so I chose a hearing before a judge at random (not a bankruptcy). I ended up sitting in on a case where the Air Force was appealing against a recommendation by the Human Rights Commision which said that an officer had been discriminated against on the basis of age with regard to not being considered for promotion to Squadron Leader because he was due to compulsorily retire within a year or so. After hearing both sides, the hearing was adjourned for a week or so to allow some point of law to be researched.
The interesting thing was that the Judge and the Barrister for the Air Force were in a courtroom in Sydney! The hearing was conducted by video-conference over a 128 kbit/s ISDN line, a video monitor being set up in front of the bench in the position that the Judge would normally occupy. A clerk was present to explain the technology and maintain the link. It seemed at first somewhat bizarre to stand and bow one's head to a video monitor, but one soon got used to the telepresence of the judge and barrister.
The officer represented himself. His wife was the only other spectator. I spoke to her before the hearing and we swapped cases. She found it ironic -- and, she hoped, a good omen -- that a conscientious objector should end up watching her husband, a military officer, defend himself against the Australian Air Force. As she put it "You're trying to deny them your taxes, and here they are wasting tax payers' money persecuting my husband", or words to that effect. She introduced me to her husband afterwards and we joked about it and wished each other well, shaking hands before parting.
Visited Paul O'Shea at his office, a kind and enthusiastic lawyer whose mind seems to work at a million miles an hour. We met to explore whether he might be able to handle my case for free even though it was outside the practice's normal funding guidelines. The practice, the Financial Counseling Service (Qld), looks after consumers who find themselves in financial difficulties and it seems that the ATO (Australian Tax Office) is one of the most difficult creditors that they have to deal with. The ATO appears to use bankruptcy in a punitive manner even when other means are available or when there is no financial advantage to the tax office in doing so. The only way the Financial Counseling Service might be able to handle my case is if they can use it to highlight these abusive practices. If I argue on a matter of law (namely under Section 52 (2) that I am "able to pay", just unwilling) I will get to go before a judge, whereas their usual cases never do. He said he would get back to me with a proposal.
He told me something that astounded me, which was that being discharged from bankruptcy does not mean that you start again with a clean slate when it comes to the tax office. Apparently, if I were to become a PAYE taxpayer, or be careless enough to overpay on provisional tax, the tax office could retain the money to service the pre-bankruptcy debt, which by then may have grown out of all proportion due to legal costs, bankruptcy trustee's costs, penalty tax and interest.
Arch Bevis (my federal MP and shadow minister for defence) arrived at 9am. Janelle didn't take Hunter to preschool until late so she could get to meet him and so he could meet my family. I also invited Mark Hayes (who has given me great support throughout the campaign). After exchanging pleasantries (Arch used to ride a push-bike around the bush near my house as a child) I suggested that there were two issues to discuss, (1) my specific problems and what Arch could do to help and (2) the possibilities for nonviolent defence.
Regarding (1) he explained why he thought the law would never be changed to allow what I am doing; because there would be no way it could be quarantined from other forms of discretionary tax; some from interests with considerable political clout. He suggested that I might have more luck with the Deputy Commisioner of Taxation than the Treasurer and said that he would write to the DCT on my behalf.
Regarding (2) Arch mentioned his peace and civil rights credentials from the Joh era. He was a member of Campaign Against Nuclear Power, and as an Organiser and Deputy General Secretary of the Queensland Teachers' Union was involved in Palm Sunday rallies and marches. He said that he had discussed nonviolent conflict resolution some years ago with a relative of his who had studied conflict resolution, and had remained unconvinced that Gandhian tactics could have been used against Hitler for example. When I said that they were used sucessfully against the Nazis in some situations and mentioned the Norwegian Teachers' Strike, he appeared to sit up and take notice. I only realised later just what an appropriate example this was for Arch.
I was very glad for Mark's presence since he cut to the heart of several matters relating to the relevance of nonviolent defence for Australia, where I would have still been trying to deal with Arch's objections, which it turned out were largely due to a misunderstanding of what we were proposing. I was impressed that Arch was on top of an expanded definition of security that includes such things as the environment and natural disasters. We talked about the desirability of such things as decentralised and resilient economies and communications, energy and water infrastructures and a populace prepared to take (nonviolent) action for their own security, as an adjunct to military preparedness.
Arch agreed to take (and try to read on a plane sometime) a copy of Brian Martin's 1993 book "Social Defence Social Change", when I promised that it was easy to read and that it gave details of some of the aforementioned uses of nonviolent tactics against the Nazis etc. It was actually Mark's copy so it was a bit rude of me to offer it to Arch since I hadn't got around to asking Mark. Mark feigned being put out by this, but of course who would miss such an opportunity with the possible future minister for defence, and I promised to buy him another copy.
After the meeting (45 minutes) Mark and I congratulated each other over a cup of coffee and when Mark had left I sent this email to Arch. This was certainly the highlight of my "campaign" so far.
My biggest problem at the moment is that with all these meetings I'm not getting much done in the way of paying work.
Anna Reynolds of the Courier Mail interviewed me briefly over the phone, browsed my website and sent out a photographer. I don't yet know when the article will appear. (Unfortunately it won't appear at all. I received this email from Anna on 28-Jul)
This letter arrived from the office of the leader of the opposition. It is a form-letter that makes not the slightest reference to anything in my letter.
At last, after 7 weeks, this letter arrived from the treasurer, well actually from an adviser to an assistant treasurer. It is breathtaking in its stating of the obvious. It tells me nothing I didn't already know and completely misses the point of my letter, while at the same time actually restating my reason for sending it in the first place! It is difficult for me to imagine that it was written with a straight face. I certainly laughed when I read it (a dark tragic sort of laugh).Yes indeed Ms East, "our elected Parliament makes the laws" and can therefore change them, and can declare a moratorium in the meantime. I said in my letter that I had "no avenue within the law as it stands". The Commissioner of Taxation was simply quoting Justice Heerey from Robert Burrowes 1991 bankruptcy hearing. In case you, the reader, have forgotten the gist of my letter, to which Ms East (and hence the treasurer) was responding, here it is again.
Ah well, at least I can say I tried.
Good news. I received this email from Gosta Lynga, Secretary of the Australian Greens, telling me that they now have a policy to establish a peace tax fund for conscientious objectors. It feels good to have the official support of both the Democrats and the Australian Greens, even if the law is still unlikely to change in the foreseeable future. He tells me the amended policies should appear on their web site, www.peg.apc.org/~ausgreen, in a few weeks.
A well-dressed, polite old gentleman served this creditors petition on me at 3pm today. The bankruptcy hearing will be on the 16th of September. I now have some difficult decisions to make.
If I do not oppose the bankruptcy then I don't get to say anything in court. It won't even go before a judge. I feel I must oppose it since it may otherwise seem that I approve it. I must decide on what grounds I will oppose it. On moral grounds certainly, but legal as well? The only legal grounds I can see are that I am "able to pay", just unwilling. But that would mean I would need to have the money and it would probably need to be in a place where the tax office could take it. And I can't let them do that. It seems then, that I can only oppose it on grounds of Freedom of Conscience.
Received a letter from Paul O'Shea (lawyer, see 1998-Jul-16). Unfortunately he can't act for me since I don't fit the guidelines for the cases to be conducted by the FCS. However he sent me some very useful articles regarding bankruptcy law and the tax office, and we had further phone discussions.
I completed this Notice of Intention to Oppose and Affidavit Supporting Grounds of Opposition, printed it in triplicate and caught a bus to the Commonwealth Law Courts on North Quay. In the Federal Court Registry, I affirmed and signed the affidavit before a JP, and filed both forms. I then walked to the other side of the city and served a copy of each on the Australian Government Solicitor. The receptionist checked with the appropriate solicitor, accepted them and said, "Do you have something you want me to sign?". I said "No." And then added, "If you can't trust the government solicitor who can you trust?". She said "It's just that some of them are paranoid". "Is it still raining outside?"
I arrived at the court at about 9:15 AM. Mark Hayes arrived about 5 minutes later. Paul O'Shea happened to be there on another matter and said good luck. I spoke with the counsel for the tax office who was friendly and said he empathised with my position but his client's view was ... [the usual stuff from Heerey J]. He was confident that an order (bankruptcy) would issue today.
Here's a simplified description of what happened: When my turn came I said that I was unfamiliar with court procedures and asked for the registrar's consideration in that regard. He asked me on what grounds I opposed the petition. I said they were in the documents that I had filed and served. He said I had to name the documents if I wished to rely on them, so I did. He then found and read the court's copies while I stood and watched, noting the occasional slightly raised eyebrow. Part way through reading the grounds he said "Do you have any other debts Mr Keenan?".
I said, "Only those mentioned in the affidavit, namely the home loan, jointly with my wife, for which we've never had any trouble meeting payments, and the fine and costs for not voting in 1993". He read on. When he had finished he asked if I had any other grounds of opposition. I said that I had considered opposing on the grounds that I was able to pay, just unwilling, but understood that this was only likely to be successful if I had some money somewhere where the tax office could easily get it, and I couldn't allow that to happen.
He said "Are you making a positive statement of solvency Mr Keenan?" I said, "Yes, I'm solvent". He said, "Approximately what equity do you have in the house?" I said, "About $60,000 jointly". He then asked the counsel for the ATO, "What is the approximate amount of the debt?" "Approximately $9,000, registrar." "I think that the best course would be to get this before a judge as soon as possible. Mr Keenan, the court does not give legal advice. I'm giving you 7 days to file any further documents. What you choose to do with that is your business. Do you understand what I'm saying?" "Yes registrar, thankyou." "The creditor will have 7 days after that to file their documents and it will be set down for a one hour hearing."
After the court was dismissed, I turned to a slightly red-faced counsel for the ATO and said "I'm as surprised as you are."
Outside I spoke with Paul O'Shea who clarified my understanding about what was required to prove solvency and Paul, Mark and I headed downstairs and across the road for a celebratory coffee and discussion. Then I caught the bus home, and as soon as I got out of the suit, started making phone calls to family and friends.
I filed and served this ammended Notice of Intention to Oppose and ammended Affidavit Supporting Grounds of Opposition, which now include the solvency argument. The Uni Credit Union, and in particular Carolyn Tuka, were wonderful in getting the necessary documentation together for me, including a new valuation of the house, at such short notice.
I ran into Arch Bevis at the Green Fair at Ashgrove and spoke to him as he was pushing his son on a swing. I congratulated him on his reelection. He mentioned that his shadow portfolio had changed from Defence to Industrial Relations. He also said that his older son had come home from uni with a copy of the same book that Mark Hayes had (ahem) given him (Social Defence Social Change by Dr Brian Martin). So he said he would return Mark's copy. I told him I had already obtained two more copies (one for me, one for Mark). I told him that my bankruptcy would get to go before a judge and also mentioned that I was considering writing to the Minister of Finance (John Fahey) requesting a waiver of debt under the Audits Act. He seemed to think it was worth a try.
I sent these letters to the Minister of Finance asking him to waive my "debt to the commonwealth", and to the Deputy Commisioner of Taxation asking him to support my request. I also emailed Arch Bevis and Senator Woodley asking them to please write in support, at least to the Deputy Commissioner.
Had a phone call from Cheryl at Arch Bevis's office, saying she was drafting a letter to the tax office and could she include my tax file number. I thanked her and gave it to her.
Received a letter from the Office of the Minister for Finance and Administration saying that they would be making a full and proper examination and preparing a report for the Minister.
Received this heartening letter from Arch Bevis, a copy of the one he sent to Mr Jack Wheeler, Regional Commissioner of Taxation, Brisbane.
Received this letter from Jack Wheeler, Regional Commissioner of Taxation, enclosing a copy of the letter he sent to the Department of Finance and Administration regarding my request for a waiver of debt. He did not support my request since he believes that the only grounds on which the Minister for Finance would waive the debt are where recovery would lead to inequity or unreasonable hardship, and I have presented no evidence of either. Hardship is understood here to mean financial hardship, not emotional, moral or spiritual.
Regarding the stuff dated 27/07/98. Please note that I did not subsequently seek any personal meeting or send any letters marked personal. The facts of the no-clean-slate thing are described at '1998-Jul-16, Thursday' above.
The third last paragraph was so much like something out of 'Yes Minister', (you know, that show where the public servant is always telling the elected representative what he can and can't do), that I couldn't let it pass. I sent this letter in response.
Received this reply from Jack Wheeler. Notice that he specifically says he won't discuss international law, my reason (a), but completely ignores my reason (b), that recovery will cost several times more than the debt and be ultimately unsuccessful. I wonder why?
Received this letter from John Fahey, Minister for Finance and Administration, in an envelope having this symbol in the inside. As expected, he declined to waive my "debt".
Ah yes, the second last sentence of the letter, of which the major political parties are very fond. "...it would set an onerous precedent for...others seeking exemption...because they do not agree with the use to which the government may put their tax money". My copy of Australia's national dictionary defines "onerous" as "hard to bear, oppressive", which is how I find the law as it stands. First, I am not really seeking an "exemption". I want the money spent to enhance the security of Australians. And second, this is not just any "use to which the government may put my tax money". It's for killing people. The only other objection which is in anything like the same category, is abortion. I personally don't feel strongly about abortion, but believe that those who do, should not be forced to contribute to it. It would be such a tiny fraction of a person's tax. I just don't buy it that in this age, when we can elect to buy electricity from renewable sources instead of fossil fuels, it is too difficult for the government to allow people with a conscientious objection to killing people, to have their money spent on something else. Utter nonsense. It's a human right.
It is ironic that this right is recognised in our Defence Act but not our Tax Act. Incidentally this year is the 50th anniversary of the UN Declaration of Human Rights. See http://www.amnesty.org.au/ .
Received this letter from the Federal Court Registry. The bankruptcy hearing is set for 28-April. A sudden loosening of the bowels and tremor of the hands overtakes me. I send out an email message to supporters, and phone a few others who don't have email. I also leave a message for Paul O'Shea to phone me.
That night I have a nightmare in which I'm being constantly pursued by people trying to kill me, and narrowly escaping each time. In the dream I am at first Arnold Schwarzeneger (the movie Running Man (Marathon Man?) come back to haunt me) and then a woman of similar strength and agility. I wake in the dark with every muscle in my body tense. I hardly dare go back to sleep. I check the covers on my children and eventually do go back to sleep. I wake in the morning feeling like a wreck.
Ordered the books that I will be giving to the Australian Defence Force Academy (ADFA) library in payment of my defence tax obligation this year. Here's the order.
We won! But unfortunately not on grounds of freedom of conscience. What a day! My deepest thanks to all my family and supporters. We sure had a good party that night. I'll write more soon, but for now here's my submission to the court, and here's the judgement, and here's Debra Aldred's article in the Courier Mail with a cute photo by Glenn Barnes.
Janelle and the kids and I are going away for a well-earned holiday for a few days (3-6 May).
Back from a wonderful 3 days at Binna Burra and walking in Lamington National Park. How grateful I feel towards those people who had the foresight nearly 100 years ago to lobby government to preserve this amazing rainforest. One man died in 1913, just two years before his dream was realised.
There was a message on my answering machine from Tamitha Smith of 6PR radio in Perth. She had learned of my case from an article in the Australian Financial Review.
Had a pleasant, if rushed, lunch with Senator John Woodley (Democrats) and Dr Mark Hayes. Rushed because I was supposed to get to a meeting at TAFE by 1pm.
Faxed off an order for the full transcript of the hearing. Likely to be about $300, yikes! But it may be of use to some future CO. I won't be able to put it on the web due to copyright, but supporters are welcome to borrow it.
What's likely to happen next?
We'll just have to wait and see what the Tax Office's next move will be. In the meantime I hope we can go back to leading a normal life.
Nonviolent Defence and Tax Resistance Resources
How can I help? (obsolete)