Who Breaks a Butterfly upon a Wheel

In contemplating David Keenan's plight, I am haunted by a powerful line from Alexander Pope's 'Epistle to Dr. Arbuthnot' at Line 308: "Who breaks a butterfly upon a wheel."

Writing in the 15th Century, Pope was witness to the hideous tortures méted out to all kinds of miscreants, breaking the villain's bones on a wheel with an iron bar being one of the more inventive. To break a delicate creature like a butterfly in such a brutal way as upon a wheel has come to be synonymous with applying superabundant effort in the accomplishment of a small matter. A modern, if far less gruesome, equivalent would be to use a sledge hammer to crack a nut.

Most people not attuned to the subtleties of general arguments for and against conscientious objection would probably write David off as a nut, perhaps uneasy about the use of a legal sledgehammer by the ATO to recover 'avoided' tax plus interest, but then tax evaders are regarded by many as in the same league as drug pushers, pædophiles, and pimps. The actual amount of money is smaller than trifling when compared with the millions avoided by those able to afford expensive lawyers or ingenious accountants, or who deliberately arrange their affairs in entirely legal if morally questionable ways to make paying their fair share of income tax, indeed any income tax, entirely optional.

A central point to always remember is that David isn't a tax evader.

David has two major problems.

His conscientious objection to paying about 10% of his annual taxation liability which goes to fund the Australian defence force has put him in direct conflict with the entire legal and financial resources of the Australian Taxation Office (ATO), as well as the Commonwealth Government.

It matters nought that David hasn't kept one cent of the $5202.46 he hasn't paid in tax. He's paid it all to research groups investigating alternative or nonviolent means of national defence, and, entirely congruent with his Gandhian practice, dutifully told the ATO what he's done.

A nagging question is why the ATO waited so long before unleashing the lawyers, and one could be forgiven for thinking that they waited for the owed amount to grow to the point where it was worth the effort and expense needed to get it. By any sensible legal reading, it should not matter whether or not the amount is $1 or millions; the point is that somebody hasn't paid all their due taxes and thence ought to be immediately pursued to the limits of the law.

His second problem is that, by arguing for discretionary government outlay of part of his tax on the basis of a lifelong and deeply held conscientious objection to funding military activities, he's placed himself in opposition to what is arguably a fundamental principle undergirding the modern state apparatus.

The central issue is that the state cannot allow any form of discretionary tax withholding or taxpayer redirection of tax revenue. It basically all goes into consolidated revenue and the government of the day divides it up.

Where could it end? Conscientious objection to funding any activity from taxes with which an individual has profound and sincere conscientious objections could well unleash an administrative nightmare of claims, objections, appeals, expensive trials, and create any number and kind of that decidedly irritating person, a martyr, for almost any conceivable cause. In allowing even a chink of legislative approval for one cause, the system opens itself up to challenge from all the other, in their eyes, equally worthy causes. Appellate tribunals would be jammed up for years with lawyers arguing intricate 'for' and 'against' cases on each and every issue or cause. It's simpler never to even open the door a micron for any cause.

Nor can the state allow taxpayers to decide or dictate where their taxes should be spent, for identical reasons. If there is any discretion at all, it is allowed at the ballot box, where voters can elect a government with policies specifically in line with an individual's conscientious beliefs, as well as, no doubt, policies some might believe violate those beliefs. For all its undoubted strengths, democracy is also an extremely crude way for individuals in a mass electorate to make their views known on specific issues, and it's even harder to have a specific policy on some esoteric issue, of interest to only a tiny minority, enacted into law.

Two attempts were made during the 1980s to introduce conscientious tax diversion into proposed peace tax funds. Then Senators Norm Sanders (Dem. Tas.) and later Jo Vallentine (N.D.P. W.A.) tabled bills to this effect but they got nowhere. Of the main political parties, only the Democrats have a policy of introducing a peace tax fund, buried away in their defence policy. But they have done nothing on this in recent years, no doubt because the political 'winds' have blown well away from the high profile peace issues once enjoyed.

The state refuses to allow the conscientious discretionary disbursement of one's taxation liability, and pursues those who, like David, seek to follow their conscience rather than the law.

Australian law does make allowances for conscientious objection to military service in times of war, particularly when conscription is in train. The criteria for establishing a genuine and sincere objection to military service are rigorous. But an Australian government has to formally declare war for this option to be available and exercised. When conscription was in operation during the Vietnam War, Australia was never formally at war with North Vietnam or its then allies. The national service lottery nevertheless drafted thousands of young men in an arguably obscene gamble on birth dates, and made criminals of many others who avoided the draft, or refused to or didn't accord legitimacy to the state's very narrow definitions of conscientious objection and the adversarial legalistic means used to establish conscientious objection to all war, not just a specific war like the Vietnam War, which probably a majority of Australians came to regard as immoral.

'Approved' conscientious objectors, however, must continue to pay their taxes even, as may be highly likely, a fair percentage of their taxes goes to funding an 'official' war.

The only legal way out of this conundrum is to reduce one's income below the taxable level. In David's case, this is arguably impossible for family reasons.

Without getting into the legal details here, Australian tax and administrative law does not allow for any kind of discretionary payment of taxes. Most salary and wage earners have Pay As You Earn (PAYE) tax automatically deducted from our pay. As a self-employed person, David has to pay provisional tax on his estimated likely earnings for the forthcoming financial year, but after that, he must declare his gross earnings and pay all the relevant income tax.

There are no legal ways in which David can prevent that percent of his tax which goes to the defence forces being diverted to other government expenditure items.

The ATO, the Director of Public Prosecutions (DPP), and the courts have absolutely no discretion in David's case. He's guilty of not paying all his due tax, and the authorities can take several steps to recover the tax not paid plus interest.

Unlike other legal situations, the motive of the convicted person is irrelevant.

David's carefully worded and thoughtful defences and explanations cut absolutely no ice. Even were a court, a magistrate or judge, an individual prosecutor or ATO officer sympathetic to his obviously genuine, sincere, and longheld position, their hands are completely tied by the law.

Bankruptcy is the most likely outcome for David. This has many implications for how he will have to conduct his affairs until the debt is fully discharged, in addition to the social stigma still attached to going broke despite the fact that thousands of people and business go broke every year, for understandable as well as decidedly dubious reasons.

Another likely outcome is for David to be found guilty of contempt of court by refusing to bow to the judgements against him. If he persists in refusing, a court can order him imprisoned 'At Her Majesty's Pleasure' until he complies.

Typically, contempt of court is invoked when somebody blatantly criticises a court or a judge, scandalises the justice system with allegations of bias, corruption, or improper administration, or a journalist publishes a story which prejudices a likely or actual trial.

In the strict meaning of the word - and lawyers are punctilious with words - David's behaviour is anything but contemptuous. He's fully informed the ATO about his actions and he's excruciatingly respectful, polite, and compliant. It is stretching the ordinary meaning of 'contempt' well beyond breaking point to convict him of showing disrespect or scorn for anybody.

But, as Lewis Caroll once had a character in 'Alice in Wonderland' exclaim, 'A word can mean whatever I want it to mean'. Should David decline to comply with a court's orders, he's automatically guilty of contempt, and a jail term is a likely result for this least contemptful of individuals.

In arguing for his position, David also faces the problem that Australia's defence forces are very infrequently used in anger, recent instances being our highly debatable military support for Western action against Iraq. Equally contentious is training provided to foreign military such as Indonesian officers being trained by the army and returning home to participate in domestic repression.

Far more frequently, Australian military forces have been deployed as part of United Nations peace keeping and land mine clearing operations and in natural disaster situations such as northern Queensland floods in early 1998. In principle, nobody would cavail about these activities, but David would argue that we don't need a military force to be involved here. Better funding and resourcing for civilian disaster response organisations, and a nonmilitary outfit specifically raised, trained, and deployed for peacekeeping and related operations could readily undertake the same roles.

David could have made substantial donations to organisations with tax deductability status whose aims are generally congruent with his beliefs. But this would have accorded legitimacy to the state's absolute right to raise and spend taxation revenue according to current government policy and Australian law.

At the end of the day, David's position and his plight raises profound and central issues about conscience, freedom, responsible citizenship, and the law over against justice in a current context where these values or norms are arguably up for grabs, are being gravely eroded by so-called economic rationalism, rampant post-modernism, and extreme moral pragmatism.

David's case is a vivid example of domination breaking a butterfly upon a wheel.

David Keenan responds:

Dear Dr Hayes,

At first I thought, "Your article is basically supportive, and I love the 'butterfly on a wheel' metaphor, but did you have to make the case for the state quite so well?" Then I thought, "He's right." 'The state' is so much more than the elected representatives, judges and administrators. It's the whole oppressive structure they find themselves in. Let's forget about appealing to its compassion for those whose consciences are violated. It probably doesn't have any. Can we appeal to its self-interest? Maybe, just maybe, we can convince 'the state' that it is actually in its interest to legalise conscientious objection to the miltary use of one's taxes.

How about we point out the fact that the state spent an awful lot of money hounding Ghandian and Nonviolent Defence expert, Dr. Robert Burrowes; bankrupting him and finally convicting him of the criminal offence of Contempt of Court in 1992, but he walked from the Contempt trial a free man and the state still hasn't got a cent out of him. In fact he's now vowed to redirect 100% of his taxes to nonviolent causes; that is, if he should accidentally earn enough to have to pay any.

The state will spend a similar amount of money hounding me, and even if they were to get the money by selling my assets this time around, despite my non-cooperation, the beauty of the situation is that they can't take their business elsewhere. I will eventually owe them more taxes and will simply withhold the lot all over again, including penalties, interest and legal costs. Next time there will be no assets.

Wouldn't the state be better off to legalise and thereby control, rather than losing out completely and making martyrs of us by sending us to jail. It could then determine, by a tribunal, who was and who was not a bona fide conscientious objector. Our money could then be paid into consolidated revenue as usual, with an agreement that a part of the budgeted defence outlays must be spent on nonviolent non-military defence, an amount equal to or greater than the defence proportion of the taxes of all registered Military Tax COs. This would be just one more among many statistics already collected by the tax office.

This is almost identical in concept to the recent innovation of being able to buy electricity from renewable sources. No one expects green electrons to come down the wires, but we do expect an audit to show that the amount of money spent on renewables is the same as, or greater than, the amount collected from registered "green" electricity consumers. Another related precedent was during the era of compulsory unionism. Public service employees with a conscientious objection to joining a union were allowed to pay an equal amount to an alternative fund set up for the purpose.

Furthermore the government could claim to be the first (I think) to recognise this as a legitimate exercise of the Universal Right to Freedom of Thought, Conscience and Religion, and possibly regain some of the moral standing it has lost over aboriginal land rights and greenhouse emissions. Clearly this exercise of that freedom does not harm anyone or infringe on the rights of anyone else in any way. And it's not as if we're talking about large amounts of money. And let's face it, this form of civil disobedience, known as tax resistance, is increasing all over the world. The writing's on the wall. It's not a question of "if", but "when?"