In April 1993, following my arrest at the Nurrungar US Air Force base in South Australia, I was one of a group of activists who resisted bail for several days. The bail resistance was unplanned, the group of resisters diverse, and the action ultimately unsuccessful in achieving any change in bail conditions. However, looking back, the Nurrungar bail resistance was an important step in my development as a nonviolent activist. I learned a lot about bail resistance, about principled nonviolence, and about myself.
This article1 analyses my experience of bail resistance at Nurrungar. I describe what happened, why it happened, and what I learned from it. I hope the insights I have gleaned will be useful to others planning arrestable actions.
Nurrungar is a United States Air Force-commanded military base situated near Woomera township, 500 kilometres north of Adelaide in the South Australian desert. It plays a key role in the nuclear war-fighting system of the United States, receiving data from US military satellites and retransmitting useful information to headquarters in the United States. Mass protests were held at Nurrungar in 1989 and 1993, demanding closure of the base.
The Spanner Action Group (SPAG) formed in February 1993, with the aim of attending the National Peace Protest and Desert Festival at the Nurrungar base in April of that year. The ten members of SPAG were Bernadette McCartney, Dave Alderson, James Langley, Kate Kelly, Louise Finnegan, Louise Gardiner, Neil Bateman, Steve Leonard, Vanessa Fox and myself. The group was explicitly established as a 'principled nonviolence affinity group', and there was a strong ethical streak in SPAG's approach to nonviolence. Several of the activists in the group were well-grounded in Gandhian-style nonviolence, with a focus on bringing conflict out into the open, respecting all parties involved in it, and attempting to resolve it collectively to meet the needs of all. In retrospect, it is clear that there was considerable philosophical diversity within the group; however, all were willing to adopt principled nonviolence as the basis for their work within the Spanner Action Group.
The group planned an action, the 'Nurrungar Closing Down Sale', to take place at the Nurrungar protests. The Closing Down Sale was a theatrical and colourful public auction of the base, followed by a mass entry into the Nurrungar Prohibited Area (a zone of land, containing the base, to which public access was denied) with the intent of "reclaiming the base for socially useful purposes". Those who entered the Prohibited Area would risk arrest and charges of Trespass on Prohibited Commonwealth Land.
Standard bail procedures
In Australia, the standard procedure following arrest on a minor charge is that the arrestee is "bailed out". This involves the arrestee signing a bail agreement, which contains conditions of bail set by the police. The conditions usually include a requirement that the arrestee appear in a specified court on a certain date, so that the matter for which the arrest took place can be heard.
If the arrestee objects to one or more of the proposed bail conditions, and for this reason chooses not to sign the bail agreement, then two things may happen. One is that the police may alter the conditions so that they become acceptable to the arrestee, who may then happily sign the bail agreement and go free. Frequently, however, the police are unwilling to vary the bail conditions they have proposed. On this scenario, if the arrestee continues to refuse to sign the bail agreement, then she will be held in police custody until a hearing before a Bail Justice takes place (usually a day or two after arrest). The role of the Bail Justice is to hear the police rationale for the proposed bail conditions, and the arrestee's objections to these conditions, and then to determine the final set of bail conditions which will be offered to the arrestee. If the arrestee continues to refuse to sign the bail agreement following this hearing, then she will be held in custody until the date of the court hearing for the offence for which she was arrested. Generally, the option of accepting the police conditions and signing the bail agreement remains open to the arrestee throughout this period.
Outline of Nurrungar bail resistance
The Nurrungar Closing Down Sale took place on Saturday 10 April 1993, and lasted for approximately one hour. At the conclusion of the auction, approximately sixty activists chose to enter the Prohibited Area, and were arrested. The arrestees included eight members of the Spanner Action Group. All of the arrestees were transported to Woomera police station to be formally charged and "processed". There, each arrestee was presented with a bail agreement containing essentially three conditions:
· That the arrestee be present at the Port Augusta Magistrates Court on a specified date in May 1993, and throughout all subsequent legal proceedings relating to the trespass charge;
· That the arrestee not return into the Nurrungar Prohibited Area;
· That the arrestee forfeit $300 to the Crown upon failing to comply with either of the first two conditions.
Each arrestee was then faced with the choice of whether to sign the bail agreement, accepting these conditions.
Of the sixty arrestees, about fifty chose to sign the agreement and were released. About ten arrestees, including two SPAG members (James Langley and myself), objected to the second condition, and for this reason refused to sign the bail agreement. The police response to this group of 'refusers' was at first to attempt to intimidate some of us into signing the agreement. The intimidating behaviour included making threatening or demeaning comments, and isolating us in individual cells. It soon became clear that, despite this pressure, we would not sign bail agreements unless the second condition was dropped. The police were not willing to alter the bail conditions, and chose instead to transport the group of bail resisters to Port Augusta lockup, where we were held for several days. Several more activists arrested over the weekend also resisted the bail conditions, and were transported to Port Augusta to join us.
At the conclusion of the Peace Protest and Desert Festival, on the Monday, the remainder of SPAG travelled down from Nurrungar to Port Augusta, and sent a deputation to the police station where the bail resisters were being held. At that point, James and I chose to sign the bail agreements and leave the lockup, for a joyful reunion with the rest of the group. The other bail resisters continued to refuse the conditions offered, and appeared before a Bail Justice on the following day. I believe that the conditions remained unaltered following that hearing, and that all of the resisters subsequently signed them and went free.
What led six SPAG members to sign the agreements, and two initially to refuse?
In our preparation for the Closing Down Sale, SPAG had failed to assess what would occur after our arrest. We had not discussed the possibility of being faced with restrictive bail conditions. When presented with our bail forms in the Woomera police station, then, each of us was forced to respond individually, without the benefit of group discussion or the chance to "work through the issues" around bail. Our decisions were therefore quite personal. A range of factors influenced how each of us responded to the situation.
Reasons for signing bail agreements
I believe that the following factors played a part in the decisions of the six SPAG members who signed the agreements:
· No intention to return to the Nurrungar prohibited area. Some members of the group had no intent to risk a second arrest by reentering the Prohibited Area. For these members, an agreement "not to return into the Nurrungar Prohibited Area" may have posed no problem of conscience.
· No awareness of bail resistance as an option. This may particularly have been the case for some of those who had not previously been arrested. There was also a general sense in the group that, after arrest, our action was "over" for the time being. This feeling was reinforced by the group's focus on preparing for the theatrical aspects of the Closing Down Sale, and our lack of discussion of post-arrest procedures. I think we operated on the assumption that the action would conclude at the moment of arrest, that the legal processing would be unproblematic, and that our job after arrest would be essentially to debrief from the action and enjoy the rest of the Festival.
· Fear around the act of refusing to sign the bail form. It can be scary to object to bail conditions. At a basic level, many of us find it difficult to say clearly what we do and do not want. The difficulty is exacerbated in the case of bail refusal, by several factors. One is that there is usually considerable pressure in the post-arrest procedure to "go along with the process" without causing any fuss. For the police, particularly in situations of mass arrest, it is desirable to process arrestees efficiently to minimise the police workload, and to avoid the uncertain territory of extended negotiation with the arrestee. The simplest and least scary course of events, from the police perspective, is that the arrestee accepts the proposed bail conditions and signs the bail agreement without question. The post-arrest procedure is set up to attempt to achieve this outcome: arrestees are hurried through, the option of objecting to the bail conditions is not mentioned, and if the arrestee does question the conditions the typical police response is to become threatening. It requires courage, and a conscious effort on the arrestee's part, to take time to reflect on the implications of bail conditions and make a considered choice on whether to sign them.
A further complicating factor is that both police officer and arrestee are usually aware at some level of the power relationship inherent in the situation. The fact that police are authority figures can increase the level of fear around challenging them. Police officers also tend to feel personally threatened when arrestees object to bail conditions or other aspects of the post-arrest procedure, since police derive a significant part of their sense of security in the arrest situation from playing a "powerful" role - being "the one who sets the conditions". A common response to the sense of threat is to become intimidating; to attempt to force the arrestee into the "powerless" role. This once again increases the level of fear for the non-cooperating activist.
· Desire to be free. One of the likely consequences of bail refusal is indefinite imprisonment. Following the Closing Down Sale, some members of SPAG may have consciously chosen not to suffer this repression, either because they preferred to relax and enjoy the the rest of the Desert Festival, or because they did not feel physically, emotionally or spiritually ready to experience imprisonment at that point.
In summary, then, some members of the group may not have found the second bail condition restrictive; if they did feel it to be restrictive, may not have recognised that they had the choice of objecting to it; and if they were aware of this choice, may have been scared of the act of resistance, or may simply not have wished to spend time in prison at that point.
My decision to resist bail
I felt strongly that I did not wish to agree to a bail condition stating that I would not "return into the Nurrungar Prohibited Area." Three main factors contributed to my unwillingness to make such an agreement (and I believe these factors operated for James also):
· Restriction of my freedom. I understood the second bail condition as an attempt to curtail my involvement in civil disobedience actions at the Base.
There were a variety of reasons why the police wished to curtail my activities in this manner. At a practical level, the police were keen to limit the number of activists willing to enter the Prohibited Area; this would both reduce the workload for the police (in terms of the numbers of arrestees to be processed), and reduce the extent to which police officers were forced to interact with activists, thus reducing the level of unpredictability and fear for the police. At a political level, it was clear that the government wished to minimise the impact of the Nurrungar actions - a "damage control" strategy. Since the mass entries to the Prohibited Area were some of the more dramatic and newsworthy events of the weekend of protests, it made sense from the government perspective to try to limit the number of activists willing and able to take part in these actions. The police force, in its role as implementer of State policy, was driven by this political agenda.
Getting arrestees to agree to restrictive bail conditions was reasonably effective as a method of limiting the number of activists willing to enter the Prohibited Area. Obviously the bail conditions would not prevent activists from entering the Prohibited Area a first time; nor could the police be certain that activists would not break the agreements and reenter the Prohibited Area anyway. However, the police knew that some combination of a desire to honour agreements, together with fear of the consequences of breaking the bail agreement (including being liable to a fine of $300, and to conviction for breaking bail), would make many activists unwilling to enter the Prohibited Area more than once. Also, bail agreements had the advantage, from the government perspective, of being fairly invisible - less likely to attract public attention or condemnation than harsher methods such as indefinite detention of arrestees.
Essentially, I saw the bail condition regarding returning to the Prohibited Area as an attempt to disempower me: an attempt to get me to agree to give up my own power to decide whether and how I would participate in civil disobedience action. I felt strongly that I did not wish to forfeit my power. If the State wished to prevent me from breaking the law a second time, it would have to physically restrain me from doing so: I would not agree to disempower myself by giving up my own right to choose whether I trespassed again. I was also aware that the second bail condition was an attempt by the State to limit public awareness of the existence of Nurrungar, and I wished to resist this attempt.
· The unrestricted wording of the condition. No limit to the operation of the condition was set; the wording suggested that it was an agreement never to return into the Nurrungar Prohibited Area. Such a condition was unnecessary and excessive. Unable to foresee whether I might wish to reenter the Prohibited Area at some future time, I was unwilling to sign a condition stating that I would never return there.
· My sense of bail as a binding agreement. I was aware that one way of resisting the attempted curtailment of my freedom would have been to sign the bail form, indicating my consent to the conditions, but then to act as if the agreement did not exist: to regard myself as free to break the conditions and and reenter the Prohibited Area if I saw fit. I did not wish to follow this approach to the bail agreement. I did not wish to suffer the additional penalty that would follow from breaching a bail condition; more importantly, I felt strongly that I wished to adhere to any agreements that I made, including bail agreements.
There were several reasons why I felt it important to honour agreements I had made. I was aware of the importance of building trust as part of the process of conflict resolution, and I saw adherence to commitments as a key element that helps to create an atmosphere of trust and respect amongst the parties to a conflict. I felt it important that my interactions with all of the people we came into contact with through the Closing Down Sale - police as well as media, other activists and the public - should be part of the process of building honest and respectful relationships. At a deeper level, truthfulness was an important principle for me personally, and one of the central values of the 'principled nonviolence' approach adopted by the Spanner Action Group. I felt that the principle of truthfulness extended to being honest in making agreements, which meant that I could only make an agreement if I had an honest intention to carry it out. If I made an agreement without this intent, then the making of the agreement would be a deceptive or dishonest act on my part. I felt it preferable to refuse to sign the bail agreement, rather than to sign it while contemplating the possibility of breaking it. Fundamentally, I felt that giving my word was a sacred act: the giving of a part of myself to another person. If I break my word, then I diminish myself.
These three factors led me to feel strongly that I did not wish to sign the bail agreement unless the second condition was removed. However, there were also a number of factors operating in the opposite direction, making me scared or uncertain about the appropriateness of bail resistance. Since I was the first person to object to the bail conditions, I was unsure how many of the other arrestees might act in the same way that I had. I was scared that I might be the only person to resist bail; scared of being in prison on my own, without support; scared that my resistance would be politically ineffective, if I acted on my own; scared that my reasons for objecting to the conditions were overly pedantic - that I was "making a mountain out of a molehill". I knew that some SPAG members had already signed the agreements and had been released; I felt guilty about splitting the group, especially if it turned out that I was the only SPAG member to refuse bail. And I wished to be free to celebrate with my friends, not locked up in jail.
Given these fears, my initial decision to object to the second bail condition was not a commitment to resist bail "all the way" - it was a decision to wait and see how others responded to the conditions. If no other arrestees had chosen to resist bail, then I would probably have retreated from my principled stand and signed the agreement as it stood, despite my strong objection to the second condition.
As the numbers of bail resisters grew, and another SPAG member (James) objected to the restrictive condition, I felt more solid in my refusal. The sense of acting in solidarity with others meant that my fears of isolation dwindled, and my determination to resist the offensive condition grew. In these circumstances I felt much less scared at the prospect of being jailed for following my conscience. However, clearly the best outcome from our point of view was that we would follow our conscience, but be able to go free, rather than being imprisoned. The only circumstance in which this could occur was if the police chose to drop the second bail condition.
Strategy for achieving changes in bail conditions
Given an initial group of about ten bail resisters, we saw a chance of achieving this outcome. Essentially, our strategy was to attempt to make it too costly, both financially and politically, for the State to keep us in jail. We hoped that a significant number of arrestees would object to the second bail condition, and refuse bail on this basis. The State, faced with a growing number of intransigent objectors, would eventually find it cheaper and less politically damaging to modify the conditions, drop the clause about reentering the Prohibited Area, and release us all on the new set of conditions. For our part, we would have had the satisfaction of sticking to our principles despite the attempts of the State to intimidate us.
On reflection, I believe that the action of bail resistance has the best chance of achieving the outcome of modification of bail conditions to meet activists' demands, if five conditions are met:
1. Steadfast refusal to accept bail unless offensive conditions are dropped. Since those resisting bail may not know how many others are acting similarly, and may in fact be lied to by the police in this regard, it is important that each individual bail resister remain steadfast in his or her own refusal.
2. Sufficient numbers of resisters. The larger the number of bail resisters, the greater the financial and administrative cost of imprisoning them. Ultimately, if a sufficient number of arrestees refuse bail, the legal system's capacity to deal with the resisters may break down. Additionally, the larger the number of arrestees in prison, the more likely they are to attract public attention. These factors all contribute to the likelihood that the State will find the attempt to impose restrictive bail conditions too costly.
3. Media attention. The detention of a group of people in prison provides an opportunity to focus media and public attention both on the objectionable bail conditions, but more importantly on the underlying political issue which led to the arrests. Skilful use of this media attention increases the political cost to the government of keeping bail resisters in jail.
4. Organised support outside prison. Since jailed bail resisters are limited in their ability to communicate with other activists or the media, it is important that supporters outside prison remain in close contact with the resisters, to monitor their condition, attract media attention, and facilitate communication with the outside world. Awareness of outside support also aids in maintaining the morale of imprisoned activists. To work best, provision of support should be preplanned and efficiently organised.
5. Positive relationships with police. It is useful for bail resisters, and their supporters, to maintain respectful working relationships with relevant higher-ranking police officers; this sets up the best possible basis for negotiation on bail conditions. Imprisonment during bail resistance also typically entails ongoing interaction over a period of time with a number of low-ranking police officers. Most of these officers will have little power to influence the bail conditions offered to the arrestees. However, it is still valuable to build respectful relationships with rank and file members of the police force; this helps to establish a context in which police will be less willing to oppress activists, including the bail resisters. Attempting to establish genuine human relationships with police officers begins the long process of deroleing police and undermining the operation of the police hierarchy.
Failure to effectively implement strategy
The Nurrungar bail resistance managed to meet only one of the above conditions - steadfast refusal. The number of bail resisters was low: out of hundreds of arrestees, only about thirteen chose to resist bail ongoingly.2 We had hoped that the group of resisters would grow as many more activists, arrested over the weekend, also refused to sign the condition regarding return to the Prohibited Area. In order to encourage protesters to consider this option, SPAG members attempted to generate discussion of bail resistance at the Nurrungar camp. However, despite many expressions of support for the stance of the bail resisters, few were willing to resist bail themselves. Some activists may have found the bail conditions unproblematic, or seen no point in resisting them. For others, a key factor was fear of indefinite imprisonment, exacerbated by lack of understanding of bail resistance as a tactic, lack of emotional preparation for its use, and the obvious lack of any organisational support for bail resisters, or any means by which people could judge how many others were planning to resist bail. The fact that the bail resisters were transported 170 kilometres to Port Augusta, and hence isolated from the activist camp, again increased the level of fear attached to undertaking bail resistance, as well as severely limiting communication between existing bail resisters and potential candidates for this action. All of these factors meant that the number of arrestees who chose to resist bail was insufficient to pose any substantial financial or administrative problem for the State.
In planning the Closing Down Sale, SPAG had not contemplated the possibility of bail resistance. In the event, therefore, support for the bail resisters was improvised. The task was made particularly hard by geographical separation, and consequent lack of communication, between bail resisters and the activist base camp. The absence of preplanned support and the low number of resisters inhibited our ability to focus public attention on the bail resistance action, and we received little media coverage. And finally, it was difficult to achieve much in the area of police-activist relations through the bail resistance action. As bail resisters, we were isolated from the police at Woomera, who controlled the bail conditions we were offered. We therefore could not build relationships directly with them. We were also isolated from our supporters, who found it hard to negotiate effectively on our behalf. The group of bail resisters itself was not cohesive: some members carried substantial fear and anger towards police, which limited the extent to which the group as a whole could establish respectful relationships with police officers. The brevity of our period in custody also meant that police-activist relationships which began to form lacked the solidity which results from ongoing interaction. The response from the Port Augusta police varied greatly from officer to officer, governed essentially by their views of and feelings about protests and protesters.
The effect of all of these factors, and particularly of the low number of resisters, was that the Nurrungar bail resistance was totally ineffective in achieving the immediate goal - alteration of bail conditions in line with activists' demands.
Decision to end bail resistance
By Monday evening, the Peace Protest and Desert Festival had concluded, and it was clear that no more bail resisters would arrive from Nurrungar to swell our numbers. It was also clear that the police would not budge on the conditions they were offering us. We therefore faced a dilemma: should we continue resisting, or sign and go free?
I still felt the second bail condition to be objectionable. However, the strength of my initial reaction to it had lessened; the Peace Protest was over, and for the time being at least, I had no intention to return to the Prohibited Area. I felt some desire to remain in jail in solidarity with the other bail resisters, but could see no political advantage in doing so, given that none of us were contemplating extended bail resistance anyway, and that our act of defiance was posing no significant financial or political problem for the State. I was also scared of feeling defeated if I "gave in" and accepted the police terms. However, I knew that it was unlikely that any other terms would be offered, and I was not ready for a lengthy stay in jail. Ultimately, both James and I decided to sign the conditions as written so that we could rejoin the rest of SPAG.
Effects on SPAG
Unplanned bail resistance by two members created an unforeseen split in SPAG, which placed substantial strains on the group. The absence of two members affected the group's ability to perform practical tasks; for example, our cooking roster was disrupted, and there were less people to help in dismantling our camp at the end of the Festival. Ongoing jail support for the bail resisters was an additional task undertaken by the group. Bail resistance also interrupted the group's planned debrief from the action and from Nurrungar as a whole. At the emotional level, the morale of the group was affected by the split. It was sad to be apart from those we worked with and loved; it was scary to be out of communication; and I suspect that all eight arrestees - the six who initially signed the bail agreements, as well as the two who didn't - felt some fear that they had done the wrong thing.
Undertaking this bail resistance action was valuable for me, in two main ways. One was that I felt empowered by the experience of acting on my conscience, saying "no" to the State, and remaining steadfast in my refusal; it was empowering to undergo a short period of imprisonment, and to realise that I could handle it. The other valuable outcome was that I learnt a number of important lessons from the experience, including the following:
· Prior discussion of post-arrest procedures. When an affinity group is planning to participate in an arrestable action, it is wise for the group to spend time in the lead-up to the action discussing post-arrest procedures, including the process of being offered bail and the possibility of resisting objectionable bail conditions. The discussion should be designed to allow each group member, and the group as a whole, to clarify whether to undertake bail resistance, and if so, in what circumstances.
· Preparation for bail resistance. When an affinity group is planning to participate in an arrestable action, and bail resistance by members of the group is a possibility, it is wise for the group to prepare fully for bail resistance. The preparations may include: (a) ascertaining which members of the group are planning to resist bail; (b) Emotional preparation for all members of the group, and particularly those who may be imprisoned indefinitely; (c) Planning of support for jailed bail resisters, including identification of what forms of support will be provided, who will provide them, and how communication can be maintained between bail resisters and supporters; (d) creating contingency plans for the operation of the group if some members are absent.
· Prior identification of level of readiness to resist bail. If the aim of bail resistance is to achieve the alteration of offensive bail conditions, a key factor in its success is the number of people willing to refuse bail and face imprisonment. For this reason, when participating in arrestable mass actions, it is wise in the lead-up to the action to ascertain people's general level of readiness to resist bail. The results may have implications for the question of whether to embark on bail resistance, and for the extent and nature of preparation that may be required to make bail resistance effective.
At a deeper level, this and a subsequent experience of bail resistance have led me to see a clear distinction between the political objective of bail resistance - the alteration of offensive bail conditions - and its strategic value - the effect it has on people's thinking, feeling and behaviour in relation to the primary political issue (in this case, the existence of US bases in Australia).3 The strategic effect of bail resistance may manifest in many ways: in the effect on police officers who experience the steadfast, respectful and honest behaviour of the resisters; in the effect on the public of continued exposure of the political issue in the context of the courage and commitment of activists in jail; in the effect on other activists inspired by the example of powerful nonviolent action. Bail resistance is one tactic in the mosaic that makes up nonviolent struggle. Whether or not bail conditions change is essentially irrelevant to the strategic value of the action.
The strategic value of nonviolent action also feels linked to its intensely personal, sacred nature. For me, the decision of whether to resist bail now depends on my conscience and my energy. If my conscience tells me that a bail condition is repugnant, if I have no prior commitments which my conscience tells me I must fulfil, and if I have enough energy to do so, I will refuse bail - even if I am the only resister, and there is no chance that the bail condition will be changed. The sacred path continues, in jail or out. I have a strong sense that the path of conscience is also the most strategically effective path, in long-term revolutionary nonviolent struggle.
Sacred Earth Nonviolence Community
19 McLachlan St
Northcote VIC 3070
Tel: (03) 9482 4973
1. This article is adapted from one to appear in Mark Cerin (ed.), Closing Down the Base: The Spanner Action Group at Nurrungar 1993. The book contains contributions from seven of the ten members of SPAG, detailing the complete story of the group. For inquiries about the book, please write to Mark Cerin, Sacred Earth Nonviolence Community, 19 McLachlan St, Northcote VIC 3070, Australia.
2. Another group of arrestees chose to resist bail for a short time to obtain the release of some activists who had been placed in solitary confinement at Woomera; see Mary Heath & Greg Ogle, 'Law and Peace: Lessons from Nurrungar'. Alternative Law Journal 19(4), August 1994: 171-4, at p.174.
3. For more discussion of the political and strategic dimensions of nonviolent action, see Robert J. Burrowes, 'The Political Objective and Strategic Goal of Nonviolent Actions'. Nonviolence Today #48, January/February 1996: 6-7.