By Peter McGregor
The status of the rights of citizens varies, both over time within any society, and also between societies. The concept of rights as somehow natural or inherent in social life, and as universal, is question-begging.
It is more perceptive to conceive of rights as being "given" or "taken away" by those in authority. For instance, before the first World War, it had been legal to belong to the Industrial Workers of the World (IWW), yet by 1917 the IWW had been declared an illegal and criminal organisation. Similarly the Menzies government attempted to make membership of the Communist Party illegal.
Thus it is evident how rights can be lost, but they can also be won. The measure of that win or loss is reflected in the legal system. A society's legal system is the rationale for the maintenance of the status quo at that moment; and rights are the "necessary illusions" of freedom, those "emotionally potent oversimplifications" (Noam Chomsky, Necessary Illusions (1989), citing Reinhold Niebuhr) without which citizens may just decide to take matters into their own hands. In Australia recently the legal boundaries of the rights to free speech and political dissent have become harder to define.
High Court ruling
The Howard government has indicated it intends to support the reopening and reversal of the High Court's 1994 landmark decisions in Theophanous v Herald and Weekly Times Ltd, and Stephens v West Australian Newspapers Ltd. Both rulings were seen as allowing free speech in the public discussion of political matters.
In 1992, the Herald-Sun published a letter to the editor from Bruce Ruxton criticising ALP politician Dr Andrew Theophanous. Theophanous sued and initially won, but on appeal to the High Court, a majority of four to three ruled that Theophanous, being a "high public official", was fair game, provided the paper hadn't published with malice, with a reckless disregard for the truth or without reasonable care.
The ruling aroused wide opposition across the major parties. Justice Deane, who had supported the ruling, commented that politicians had become accustomed to defamation actions as both a source of tax-free income and a gag for critics. According to the Australian Law Reform Commission, 26% of defamation actions were being taken by hypersensitive politicians.
The High Court ruled there was an implied protection for political discourse in the Constitution, specifically allowing the freedom to criticise those who presume to high office (including judges). Since 1994 this ruling has resulted in a somewhat more open society, but with the recent changes in the membership of the court in a less libertarian direction, politicians are now going for a reversal.
Political dissent
During the campaign for this year's federal election, Albert Langer, as spokesperson for a group called "Neither!", was threatened with prosecution, if he and his group continued to advocate publicly a specific system of voting.
Politicians regularly advocate particular voting choices. Yet, despite the legality of putting all the candidates one doesn't like equally last — in other words, to deny a preference to either of the major parties — the advocacy of such a vote was technically illegal.
When ordered to refrain from such advocacy, Langer refused to accept the court's ruling, and was accordingly jailed indefinitely for contempt. Despite considerable public outcry, he was held in jail until the election was over. Especially since people around Australia immediately followed Langer's example — without being summoned, arrested or otherwise restrained — this jailing was seen as (a) illogical and irrational, and (b) an appallingly arbitrary infringement upon his right to free speech on political matters.
In another case, in July a local court in Bankstown reinforced or expanded the rights to free speech, and to the public expression of political opinions. Four East Timor activists had been arrested in February at a protest occupation at the electoral office of the then prime minister. Magistrate Bradd dismissed charges of trespass, accepting the defence of Stuart Littlemore (QC) that the demonstrators had "lawful excuse" to remain on the premises.
Littlemore's argument was that the electoral office of a parliamentarian, while private property, is a public place because people have been invited to visit, with open-to-the-public office hours being displayed. Littlemore cited the various international covenants that have been ratified by the Australian government, and the High Court Theophanous ruling that the Australian constitution allows free speech on political matters.
According to Bradd, the constitutional right of citizens to free speech on political matters in a public place does not disappear just because they are instructed to leave, whether by the police or the owner. This case significantly expands our "rights" — what we can get away with. It has implications for what may constitute a "public place" (e.g. shopping malls, parks, government and other offices). Also, it interprets an occupation/sit-in/protest as an exercise of one's constitutional right to free speech.
There have been other recent direct actions — e.g., the occupation of the foyer of the federal government offices in Sydney at the May 30 rally against education cuts, and non-violent occupations of both Howard's and Vanstone's electoral offices.
However, the huge August 19 demonstration in Canberra may become a considerable de facto reversal of such progress unless we manage to contextualise the event: what authority do the police or government have to lock the doors and deny entry to citizens, even if they are demonstrating? Parliament is meant to be the house par excellence of the citizenry. If, like an electoral office or any other public place, the premises are "open" for operations, surely the public are entitled to exercise their constitutional right to free speech, including to enter in order to protest.
Direct action and freedom
The recent "Seeds of Hope" case in the UK is quite momentous, both in itself and in what it portends. In February, four women had engaged in a Ploughshares action, in which they broke into British Aerospace's Lancashire plant, housing 24 Hawk warplanes being exported to Indonesia. With household hammers they inflicted damage estimated at A$3 million to one of the fighters.
After six months in custody, and a week-long trial, in July a jury acquitted them of all charges, both of conspiracy and of criminal damage. The ruling is an instance of a "higher cause" outweighing the ordinary considerations of criminal law.
Under UK law, one is allowed to use reasonable force to prevent a crime. Under international law, governments and companies are complicit in breaches of international law, such as genocide and other war crimes, should they knowingly trade in the equipment of such crimes. The most telling example cited by the defendants was two German industrialists found guilty at the Nuremberg Tribunal of war crimes, for providing the gas used to exterminate people in concentration camps.
Citing international and UK legislation against genocide, the women claimed justification: they claimed their moral choice, their freedom to disarm the warplanes, could also be legally justified by the "lawful excuse" to employ reasonable force to prevent the greater crime of the use of the planes by Indonesia against the people of East Timor. The justification argument was that all other legal methods had been tried, and that once the planes left the UK, nothing further could be done to prevent their genocidal use in East Timor.
While the state's and the corporation's powers and (legal) rights, respectively, have been eroded/overruled for the moment, the struggle presumably is now under way to reverse such a victory.
Beyond the law?
The notion of rights as natural or universal is mystifying, as is all ideology: their variability, relativity and malleability is only too evident in the definition of freedom as "obedience to the law".
Historically freedom has rarely been given; rather, it has had to be taken. We should feel no need to justify defending our and others' freedom. "Victor Serge tells how, during the sack of Razoumovskoe, revolutionaries were criticised for smashing some porcelain. Their reply was: 'We shall smash all the porcelain in the world to change life. You love things too much and people too little ... you love people too much as things, and people as people you don't love enough.' Everything we do not have to destroy should be saved: such, in its most succinct form, is our future penal code." (R. Vaneigem, Revolution of Everyday Life.)
Direct action is an expression of one's freedom to act, of room to move. If we don't exercise that freedom, we may find it is getting harder to move at all; and if we don't rock the boat, we sure won't sink it. Obedience to the law, and the right to freedom, are the alibis of servitude.