War Tax Resister Convicted of Contempt

Bankruptcy is a much discussed issue in Australia at present.  But Robert
Burrowes is a different sort of bankrupt to the high fliers that we
constantly hear about.  He has not borrowed millions, invested off-shore,
built yachts or bought Van Gogh paintings for status.  And he has not tried
devious means to minimise his tax.  In fact, in our 'Pay As You Earn'
taxation system, Robert has had to work very hard to produce any income on
which he could withhold tax money.  He has openly declared that he is not
willing to pay the 10% of his tax assessment that goes to military spending. 
As someone who has announced that he is not willing to kill, he also refuses
to pay for others to do it for him. 

Every year for the past eight he has gone to the taxation office and
attempted to pay the military component of his assessment in kind - for
example in trees to highlight the environmental cost of military spending, or
with shovels to highlight the development costs, or with barrows of soil to
make the point that instead of spending on war preparation, money should go
to pay the rent to Aboriginal Australians who have been dispossessed of the
continent over the past 200 years. 

There were no lawyers seeking loop-holes, no wheeling and dealing, no
stripped companies, no crowd of creditors who have lost their investments. 
When the Taxation Department refused his 'payments', Robert gave the trees,
shovels or money equivalent to peace, human rights, environmental or
development organisations.  This has led him into court on several occasions,
seen him ordered to pay his full assessment, and in 1991 finally seen him
declared bankrupt.

Bankruptcy means the compulsory handing of the management of one's financial
affairs over to the public trustee who ensures that as much of the bankrupt's
assets as can be secured is used to pay those owed money.  It is the duty of
the bankrupt to disclose all their financial affairs to the trustee, and most
are eager to do this to clear their debt and after a few years allow them to
start again, clear of demanding creditors.

Robert has nothing to hide, however, while making no attempts to hinder the
work of the trustee, he has decided not to actively cooperate.  He reasoned
that having refused to pay military taxes for years he was not now about to
actively help government gain that money.  This meant that he moved from a
debt action into the sphere of the criminal law.

Now he was not merely withholding money but was in contempt of court -
refusing to obey a court order which directed him, as a bankrupt, to
cooperate with the public trustee.  And court orders must be obeyed -
otherwise our legal system loses its enforcement mechanism with catastrophic
consequences for our presently structured social organisation.  In short,
contempt of court is taken very seriously.  On Wednesday 22 April 1992,
Robert, and others contemplating war tax resistance, should have found out
just how seriously.  Robert and his supporters had prepared for the seeming
certainty that he would be imprisoned: after all what choice did the system
have?

Yet, a half hour after the proceedings had begun, Robert walked from the
Federal Court with a conviction for contempt and no additional penalty. What
had happened and why? 

At 10.20 am, the barrister for the Official Trustee in Bankruptcy presented
the case against Robert before Northrop J.: an application under s.54 of the
Bankruptcy Act 1966 stating that bankrupts must file a statement of affairs
had not been complied with, and that such failure constituted a contempt of
court.  The barrister pointed out that a contempt had occurred, and that this
could not be undone, therefore Robert should be punished and a further order
for him to comply should be made.  He noted that the available sanctions were
a fine and/or imprisonment or a conviction without fine or imprisonment.

Robert was then allowed to make a statement in court.  He explained why he
had not paid his war taxes, and continued, I am willing to listen to new
arguments that military violence is appropriate as a mechanism for dealing
with conflict and to have my conscience respond to new information that
suggests that military violence is morally justifiable.  I am not an
unreasonable or dogmatic person; I just try to live by my conscience as it
guides me from day to day.

This Robert added presented him with a difficult problem: My problem stems
from the fact that a Federal Court judge has declared me bankrupt and the
Official Receivers Office has demanded that I comply with a process that
would allow my assets and income to be used to pay for the military violence
to which I have an intellectual and moral objection.  My problem, then, is
simple: what should I do?  Should I pay those taxes and rely on other people
or institutions to halt the ongoing carnage caused by military violence?

Should I rely on the United Nations which was so abused by national
governments that it sanctioned the massive slaughter known as the Gulf War? 
Should I rely on national governments which use their military power to
defend their own narrow vested interests and which ignore the military
violence committed by other national governments, often against their own
people, after issuing token condemnations?  Should I rely on those
multinational corporations which seek to maximise their profits from the sale
of military weapons or instruments of torture?  Should I rely on the courts
where the sense of justice is so distorted that it is legal for a homeless
child in Melbourne to live in poverty but illegal for that child to steal
food to eat?  Or where the sense of justice is so distorted that it is legal
for 40,000 people in Africa, Asia and Latin America to be systematically
starved to death each day while the world spends $2 billion on weapons and
warfare?

It is clearly evident to me that these major state and corporate structures
are not to be trusted with such heavy responsibility.  In fact, after careful
deliberation, I have decided that there is only one thing that I can trust:
the individual conscience of ordinary women and men.  It is our collective
conscience which is the foundation of a just, peaceful and ecologically
sustainable society.

It was my recognition more than eight years ago that I was one of those
ordinary women and men that led me to become a war tax resister.  I decided
that one of my contributions to making the world a more just and peaceful
place would be a commitment to refuse paying taxes to finance military
violence.  In other words, I accepted personal responsibility for stopping
military violence and the exploitation it is used to defend.  I decided that
until I am convinced otherwise, I would continue to do everything in my power
to stop war and military spending.  I decided that I would not cooperate; nor
would I submit to any threatened punishment.  I would not pay taxes for war.

So what am I to do now after all those years adhering to my commitment? 
Should I pay taxes for war because I am ordered to do so by the Australian
government?  Should I pay taxes for war because I am ordered to do so by the
Australian Taxation Office?  Should I pay taxes for war because I am ordered
to do so by the Federal Court and the bankruptcy trustee?  How can I?  I have
made a commitment to myself and that commitment is irrevocable.

Therefore, it does not matter what the Australian government decides; it does
not matter what this court decides; and it does not matter what anyone else
decides.  Until I am personally convinced that military violence is morally
justified, I will never pay taxes to finance military spending.

In these circumstances, Your Honour, there are essentially two possible
outcomes to the problem as it presents itself in your court today.

On the one hand, if you are not convinced that my conscience should be the
basis of my behaviour on this matter or that there is not adequate merit in
my intellectual, moral and conscientious convictions regarding my absolute
abhorrence of military violence, and if you believe totally in the adequacy
of the law as it applies in this case, then you must, in accord with your own
conscience, impose a penalty as the law prescribes.  In these circumstances,
no other course of action would be appropriate.

On the other hand, your conscience may tell you that what I am saying entails
a sense of justice that goes beyond the law as it stands and your judgment
today could reflect that.  In that case, you must be willing to make an
imaginative decision that may be viewed initially with some skepticism by
your legal colleagues but which I can assure you will be viewed by many
people, and certainly future generations, as both enlightened and visionary. 
If you adopt the latter approach, then it is possible that the Official
Receivers Office will appeal against your decision.  Then again, given my
conscientious beliefs and my arguments, they might not.  In any case, if they
do appeal against your decision, I will then have the opportunity to convince
yet another judge of the justice of my cause.

The point is, Your Honour, that while it is my view that the institutions
which dominate our society are totally inadequate for dealing with the
multitude of political, economic and environmental problems we face, I also
know that these institutions are only powerful while people continue to
support them.  As soon as enough individuals decide that they will not
support them, as soon as enough individuals decide that they will act out
their own conscience, as soon as enough people realise that just 'doing their
job' is a recipe for extinction, these outmoded institutions will wither and
die.  And the alternative structures which we are creating to put in their
place - which are responsive to human and planetary needs - will supplant
them.

I invite you, Your Honour, to join me in this struggle to create a new world
civilisation: a civilisation in which peace and justice are living realities
for all people and a civilisation which respects and nurtures the Earth
itself.  I invite you to help me by recognising the vital role of the
individual conscience in this struggle.  And I ask you to answer the call of
your own conscience in making your judgment today.

Following this statement a seemingly curious thing happened.  The barrister
for the Trustee again pointed out that it was within the court's jurisdiction
to convict Robert without further penalty, admitted that as far as he knew
the Taxation Office was the only creditor owed money, and that Robert had
made some form of payment in kind.  When Northrop J. pointed out that any
order made against 'the bankrupt' would be met with arguments similar to
those that the court had just heard, the barrister for the applicant made the
extraordinary suggestion that there may be some avenue of compromise
available that would not require Robert to compromise himself.

What was going on here?  It is as if the prosecution in a criminal case had
suddenly started telling the judge that the person they were proceeding
against should be let off.  Why was the applicant's counsel not pushing for
the severest sanction to make an example of Robert?

The judge may have been swayed by, as he put it, Robert's 'very eloquent
plea' or he may have taken his cue from the messages being sent by counsel. 
Northrop J. noted that while the bankrupt had asked the court to judge his
moral stance and make a judgment accordingly, the business of the court was
to dispense justice.  He produced a copy of the judge's oath about applying
the law without fear or favour, affection or ill will.  He noted that the
contempt was clear and unambiguous and therefore he had to apply the law and
record a conviction but was not free to express moral views.

Robert was duly convicted and ordered to pay costs (the judge made no
response to Robert's statement that he would refuse to pay) but 'due to the
circumstances' no further order was made (i.e. Robert would receive no other
punishment).  He also pointed to the possibility of further discussion
between Robert and the Trustee. 

Then, in a mood of elation that Robert did not have to face prison, the war
tax resister group left the court feeling that some sort of victory had been
gained.  But had it?  Feelings of joy are not necessarily conducive to
analytical thinking.

Perhaps the system had painted itself into a corner.  The bankruptcy was
still there and now Robert owed more in costs.  The ball was back in the
Trustee's court.  They would have to start all over again and perhaps the
next judge would be forced to take more decisive steps.  The Trustee had
tried to intimidate Robert into paying by continually threatening
imprisonment.  But Robert's uncompromising and obviously uncowed attitude
called their bluff.

And it appears that it was bluff.  The Taxation Commissioner is essentially
concerned about two things: to recover owing monies and to ensure that as few
people as possible follow Robert's example.  Probably the imprisonment of
bankrupt Robert Burrowes would have been dysfunctional in these regards.

The purpose of imprisonment is usually stated as being retribution,
rehabilitation and deterrence.  What sort of punishment do you give a law
abiding person whose only crime is that he refuses to pay for war? 
Retribution in this case would seem very petty and mean minded.

And how do you rehabilitate this sort of miscreant?  Deterrence is the only
possible explanation for imprisoning a conscientious redirector of war taxes.
But even this is extremely problematic.  Robert had demonstrated that he
would not be deterred.  This leaves general deterrence - preventing others
from taking similar steps.

Very few people sit bolt upright in the middle of the night and realise that
they have to stop paying for the military.  Those who take this step have
generally thought about it for a long time, they are not the sort who will be
deterred.  The publicity generated by the imprisonment of a tax redirector is
more likely to bring the issue to public notice, perhaps encouraging more to
follow.  On a cost/benefit basis even this approach is highly likely to be
counter productive.

Interestingly, as soon as it became clear that Robert would not be
incarcerated the media visibly lost interest.  When Robert was bankrupted all
five of Melbourne's televisions stations carried the story in their evening
news.  This time only two stations ran the story. (How long can media
interest be kept up?).

The conduct of the trial by the Trustee's barrister was laced with clues that
there was some fall back position that would maximise the likelihood of their
objectives being gained and minimising potential future losses.  At one stage
the barrister noted that the Trustee could go on in its efforts to secure the
money owed without Robert's cooperation.

The Trustee may now try to seize Robert's assets without worrying whether he
has filled in the s.54 statement, and do it at some less propaganda rich
time.  Perhaps the mentioned compromise may mean reminding Robert of his
commitment to nonviolence and openness to gain access to a symbolic amount of
his assets.  Or, perhaps, they will wait until after this year's tax
assessments are due and then rethink their position depending on whether
interest in tax redirection has grown or subsided.  They may even accept
Robert's payment in kind, if publicity can be minimised (Robert's conscience
is not compromised, the issue is taken off the public agenda and the
Department is saved a great deal of money in pursuing Robert - money they
will not easily be able to recover).  Or they may simply close Robert's file
on the ground that he does not have the resources to pay the claimed debt,
and is unlikely to generate it.

The seeming victory may not have been quite the victory that the post trial
euphoria seemed to indicate.  Robert is free and has been allowed to express
his views in court (demonstrating the fairness of the system), the judge
upheld the majesty of the legal system, and the Taxation Department (despite
a possible legal setback,) when its bluff failed, effectively minimised
propaganda and its losses while going back to a contingency plan it has
obviously considered but not yet made known.

(For a detailed description of the dynamics of a political trial, one that
focuses on local examples, see R.Douglas 'Timber Cutting on Trial: Police,
Courts and the Rainforest Action Group' Interdisciplinary Peace Research
(1990) II(2):74-85.)

But all have not won.  Robert reminded the media and his supporters after the
trial that, irrespective of the court outcome, world military spending goes
on uninterrupted and 40,000 Africans, Asians and Latin Americans continue to
die daily because they do not have enough to eat.
Thomas Weber