Where To From Here?
The Latest Developments In Robert Burrowes' War Tax Resistance Campaign

The Petition for Bankruptcy.
Since last March, when the Australian Taxation Office issued a 'Bankruptcy
Notice' against Robert Burrowes, there has been a long waiting period for the
Deputy Commissioner of Taxation to make the next move.

Robert has been refusing to pay part of his taxes in 'legal tender' (as
stipulated by Regulation 58 made pursuant to the Tax Act 1966) because he
does not want to contribute to military expenditure.  Instead he has
attempted to pay 'in kind' with such constructive and symbolic items as
shovels, trees and Aboriginal land (see NVT no.11, p.21 and no.20, pp.13-14)
and by donating the balance of the claimed money to various peace and
development organisations.

In late October a leaked internal Taxation Office document stated that most
branch offices were not pursuing tax debts of less than $10,000.  The
official response was that this was untrue, although those owing smaller
amounts were pursued with less vigour than those owing large amounts.

Whatever the truth of these reports they may illustrate a dilemma for the tax
office.  If the taxation officials really were not going to chase minor
debtors, Robert would be overlooked and unnecessary publicity that may
encourage others to take similar actions would be avoided.

On the other hand if they proceed to bankrupt him regardless of the
inevitable media coverage, even though the amounts owing are less than
$10,000 (and half of that being court costs and interest, not withheld
taxes), it may ensure that others get the message that such actions will not
be tolerated.

They chose the latter option.  On 9 October, Robert was finally served with a
'Creditor's Petition' (see NVT no.23, p.13) informing him that the petition
by the Deputy Commissioner of Taxation to have him declared bankrupt would be
heard in the Federal Court in Melbourne on 7 November.  It seemed that a long
period of waiting was finally coming to an end.

After being assured that the petition would be heard on the set day, Robert
and his support team mobilised the media to ensure good coverage of the
courtroom action.  With many well-wishers and a large media contingent
present, Robert walked into the Federal Court with his now familiar shovel,
tree and Land Rights flag only to be informed that the Taxation Office was
requesting a three week adjournment to gather more information to fight the
case.  They have already had over two years since Robert was ordered to pay
up by the Magistrates' Court in 1989, to prepare.

This raised the question of whether the media could be mobilised again so
soon.

The Case in the Federal Court
Although many of Robert's usual supporters were in Canberra protesting
against the AIDEX 'Arms Bazaar', the media were again present in force at
9.30am outside the Federal Court building to hear Robert tell them that not
only did he not want to kill anyone but that he did not want to pay anyone
else to do the killing for him, and to film him entering the building with
his usual paraphernalia.

The morning was taken up with other matters, but finally, at 12.40 pm, Judge
Heerey undertook to hear the case Re Robert J.Burrowes; ex parte the Deputy
Commissioner of Taxation.  After the barrister for the Tax Office had
outlined the decision of the 1989 Magistrates' Court, the learned judge
adjourned the proceedings until 2.30pm after the lunch break.  Fortunately no
other important story was breaking in Melbourne and the patient media
returned after lunch.

Robert was allowed to speak, uninterrupted, seemingly for as long as he
wanted.  He outlined three grounds for his conscientious belief:
1. Ten years engaged in peace research had provided the intellectual
justification for his strengthening belief that military spending benefits
vested interests and has very little to do with the security needs of the
vast majority of people.
2. His personal experience in Sudanese refugee camps during the Ethiopian
famine and as a member of the Gulf Peace Team brought home to him the
development and environmental costs of military spending.
3. His personal philosophy of a commitment to nonviolence as a way of life
was based on a belief in the sacredness and interconnectedness of all life.

Then he presented the five legal grounds on which he intended to argue his
case:
1. That the taxes have been paid.
2. That the taxes are not required to be paid because they are a violation of
his right to freedom of conscience under the International Covenant on Civil
and Political Rights to which Australia is a signatory.
3. The taxes are not required to be paid because they are a violation of the
legal duty under international law as exemplified in the Nuremburg
Principles.
4. The taxes are not required to be paid because they are used for illegal
purposes in contravention of numerous treaties of international law which
Australia has ratified.
5. The 'necessity defence', which excuses criminal action if it is done to
prevent an 'imminent peril', obviates the necessity to pay taxes because this
course of action will help to prevent the 'imminent peril' of nuclear
holocaust.

The Decision of the Federal Court
The prosecution case was a re-run of the argument presented in the
Magistrates' court two years earlier: the amounts were not in dispute, the
grounds Robert was basing his case on were not recognised in the Tax Act,
taxes had to be paid in 'legal tender', and that the Federal Court had no
power to make judgments on constitutional matters so grounds 2-5 were
irrelevant.

The decision of the court was also a re-run of the earlier ruling.  Following
a few statements about Robert's sincerity and the courteous way he had
presented his case the judge (accurately) summarised each of the legal
grounds Robert had put up in defence, and then dismissed them in a few
sentences: Regulation 58 insists on 'legal tender', international covenants
are not part of Australia's domestic law, the Nuremburg Principles do not
seem to be applicable to actions of individual taxpayers under the Tax Act,
international treaties are not part of Australia's domestic law, the law of
necessity is only relevant as a defence to criminal charges and does not
extend to cover taxation matters.

Judge Heerey  announced that he had no option but to find against Robert's
grounds for challenging the petition, consequently he directed that a
sequestration order be made against Robert.  Robert Burrowes was now
officially a bankrupt.

Given this seeming predicability of outcome, one is left wondering whether it
is inevitable in our legal system and, whether it is or not, if it is worth
putting any amount of quality time into fighting tax resistance cases in this
forum.

Where to From Here?
In his verdict the judge made the expected point that we elect governments
that control parliament and make laws (that some may conscientiously object
to) for societal good.  The system of democratic government, he continued,
means that we live under the rule of law and that laws must be enforceable. 
Individuals do not have the choice to disobey the law because they contradict
a conscientious belief, no matter how sincerely held.

The unstated implication is: if you don't like the law elect a different
government.  Can anyone seriously imagine a Hewson government introducing a
bill allowing for a diversion of war tax?  This certainly is not the answer.

In his statement, Robert asked the judge to put legal fictions aside and not
make his judgment on sterile interpretations of the law, to be creative, to
use his imagination to bring down a decision which would serve to make a more
just and peaceful world.

Robert asked Judge Heerey not to try to find the answer to the matter before
him in the usual 'box', because it was not there.  He urged the judge to open
other 'boxes'.  The barrister for the Tax Office immediately went to the same
old 'box' and neither he nor the judge even looked in the direction of
another.  And, given the working of the system, it is almost inevitable that
this is the way it is destined to be.

This then raises the question of what exactly the aim of this type of action
is.  Where the discourses are so fundamentally different should the aim
continue to be an attempted victory in court, or should effort be put into
educating the public through the media which in turn may eventually tempt
government to pass Jo Vallentine's war tax diverting Peace Trust Fund Bill or
incorporate broader definitions of conscientious objection and international
conventions into our domestic law?

The Fight for Genuine Security
The public education route is the easier one.  The Cold War has cooled right
off.  There is much talk of peace dividends.  Famines and 'natural' disasters
have not decreased and so now it is easier to make an impact by noting how
many schools, hospitals or wells could be constructed from the cost of each
fighter plane or battle ship.

Increasingly global security must be seen in terms of environmental security
for all and social justice for the many denied it.  If the role of
governments is to provide security for their citizens, how, in a time of
minimal international tension, is this achieved by arms spending while
citizens starve and are without shelter?

Perhaps we should pay taxes for the security of people - but in the
international, not just the national, community.  And for the majority of
people security surely means more than merely the protection of an elite by
military force.  The hegemonic notion of what defence and security entails
needs to be broken.  Fighting war tax resistance battles helps in this
regard.

Are Court Battles Useful in the Legal Sense?
Although Robert had to abandon his High Court challenge of the Tax Act
because it became increasingly clear that the legal system is structured in a
way as to preclude such challenges to state authority, perhaps there is a
(slight) possibility of a breakthrough in this forum.

During his trial for sedition in 1922, Mahatma Gandhi told the judge:
"I am here to invite and cheerfully submit to the highest penalty that can be
inflicted upon me for what in law is a deliberate crime and what appears to
me to be the highest duty of a citizen.  The only course open to
you...is...either to resign your post, or inflict on me the severest penalty
if you believe that the system and the law you are assisting to administer
are good for the people of this country and that my activity is therefore
injurious to the public weal."

A rare judge may have realised that imperialist exploitation was unjust and
they were upholders of an iniquitous system.  Within our liberal democracy a
judge can always blame a popularly elected parliament for laws she or he
merely has to interpret.  There will never be resignations and very rarely
will creatively novel decisions be handed down.

But occasionally courts will make a quantum directional change.  All students
of law know that until sixty years ago when Mrs.Donoghue found the partially
decomposed snail in her bottle of half drunk ginger beer and suffered nervous
shock as a result, there was no adequate law of negligence.  This is the
classic example of judge, rather than parliament, made law.

If there was the single minded will (and unlimited funds) to keep appealing
on the grounds that international treaties are part of our domestic law
perhaps one day a break through could be achieved.  As with the need to call
errant manufacturers to book for their negligence with the emergence of a
mass consumer market, perhaps, in an era of a shrinking world where the
nation state looks more and more anachronistic, the time is approaching when
global and conscience considerations are given far greater importance in our
domestic legal system.  Perhaps it's time for another snail in the ginger
beer. But that would take creative and imaginative judges.

Conclusion
Whichever path is taken, it seems that the tactics remain roughly the same. 
A vigorous court statement, and the backing of sympathetic lawyers, may one
day provide a legal breakthrough.  In any case, through the media and public
sympathy, the courts can be used to bring pressure on government to alter
laws dealing with security, conscience and the interrelationship between
domestic and international legal systems.  As Robert Burrowes awaits the
Trustee to attempt to take over management of his financial affairs, the
answer to the question, "Where to from here?" seems to be (at least after he
is discharged from bankruptcy in three years time) 'more of the same'. 
Regardless of court decisions or changes in public and parliamentary
attitudes to war tax resistance, what other choice does a conscientious
objector have?
Thomas Weber