Court Defence

Defence Presentation of Robert J. Burrowes, War Tax Resister

Federal Court of Australia, Melbourne, 27 November 1991

MR BURROWES: Thank you, your Honour. What I have been doing since 1983 is refusing to pay that part of my income tax that is spent on the military because I have a conscientious objection to paying taxes for war and military spending. What I propose to do is outline the basis of my conscientious beliefs on this matter and then provide the legal basis for those conscientiously held beliefs.

The grounds of my conscientious beliefs are basically three. At one level they are intellectual and they reflect the ten years I have spent engaged in peace research. Peace research is a discipline that is about 35 years old now; it originated in Scandinavia. Essentially, it is about trying to understand the nature and causes of conflict in the international system and in trying to find ways of dealing with that conflict without resorting to war. I have particularly specialised in conflict theory, strategic theory and in the theory of nonviolence, and this has given me a much clearer understanding of why we have conflict in the international system.

I think it is important that I convey the essence of that to you. The traditional conception of why we have war is that nation-states are entitled to defend their interests, when they think it is necessary, by the resort to force. In fact, the United Nations Charter in 1945 gave nations that right. The problem is that there is an increasing body of evidence, well documented in the peace research field, that suggests that this is a particularly inappropriate way of explaining why international conflict occurs.

In essence, international conflict occurs because elite groups of people in the world — who exist in the upper echelons of nation-states — work very hard to protect vested interests. Conflict is largely the result of these groups of individuals trying to protect elite power, corporate profit and personal privilege, and doing so at the expense of wider interests, and particularly the security needs of ordinary people. I think that if we look at what is going on in the world today it is very evident that, where national governments act, they do so in concert with other national governments; not necessarily because of a conspiracy to systematically deprive some parts of the world of the resources that military spending absorbs, but simply because of a community of interest. This is why, for instance, the Australian Government has found it very difficult to condemn the Indonesian Government over the massacre in East Timor. The reality is that governments work with other governments; and not to satisfy the needs of ordinary people.

The evidence that this is happening is manifest every day. We spend $2 billion a day on weapons and warfare — in fact, about $3 billion a day during the Gulf War — and yet every day 40,000 people die in the Third World because they do not have enough to eat; and every day, despite all the so-called aid that is spent, $200 million is added to Third World debt. Now, a large part of that can be attributed to military spending by elites in the Third World, many of whom are held in place …..

(Recorded: not transcribed)

MR BURROWES: So, in summary on this point – and I think you have the sense that I could speak at great length because I have done a lot of research – what I am saying is that military spending benefits some powerful vested interests, but it certainly does not benefit ordinary people, nor does it satisfy the security needs of ordinary people. I am interpreting security in a fairly wide sense, including access to the resources to stay alive which many Third World people do not have.

Now, it may seem rather obvious, but one of the conclusions I have come to after ten years of research is that you cannot resolve conflict by killing people! And, unfortunately, paying for the military is precisely what that tries to do.

The second part of my conscientiously held beliefs in relation to this matter stems from my personal experience, and I want to tell you about two of these. In 1985 I was part of a Community Aid Abroad refugee health team in the Sudan. In 1984 and 1985, as you may recall, the Horn of Africa experienced what was, to that point, the most severe drought on record, and as a result of that drought there was widespread famine throughout the Horn of Africa, including Ethiopia and the Sudan. However, what made things particularly difficult was the fact that the Dergue, the Ethiopian Government, was conducting a war against the people of its northern province, Tigray, and the people of Eritrea. In fact, that government was so corrupt that it was willing to use the famine as a weapon of war. They deliberately interfered with aid sent by concerned countries and people around the world to help the starving people in those famine-hit areas of Eritrea and Tigray. They also used fighters to strafe these people when they were finally forced to leave their homeland and seek refuge, where they could get food, in the refugee camps of the Sudan.

There was a whole network of these camps on the border between Sudan and Ethiopia, and three of them in the group that I worked in: it was called Shagarab East 2 and it was about 600 kilometres south-east of Khartoum. There were seven of us in our team: one doctor, four nurses and two administrators. I have no medical training; I was an administrator. I just did liaison and logistical type work; my task was to make the work of the medical team easier. Community Aid Abroad was one of three agencies working in the Shagarab East 2 refugee camp. We had 20,000 people in that camp, and, in the three months that I worked there, each day those people were given some beans, some white flour and some cooking oil. That was the extent of their diet except for a fortnightly ration of dates.

Now when those people got to that camp most of them had spent several weeks getting there. As a result of that several weeks travelling overland without much in the way of food, and with a minimum of belongings because they were carrying them, they were in a severely malnourished condition; some were emaciated. Many, of course, had died on the way. In that camp, I think it is safe to say, people worked as hard as they possibly could, and I can vouch for the Community Aid Abroad health team. Most days started at 7am and some days did not finish until 9pm. The average daily temperature was 55 degrees Celsius.

And every day, no matter how hard we worked, five people died. On average about two of them died from hunger-related diseases such as diarrhoea and tuberculosis, quite treatable diseases given a normal health regime and an adequate diet. And, on average, another three died from diseases like pneumonia and malaria. The point about that experience was that it reinforced, yet again, my conviction that spending money on the military is not an appropriate way to use the world’s resources. These people were peasant farmers; they were being starved to death by a government that was more concerned about control of their territory than the lives of ordinary men, women and children.

It was while I was working in that camp that I had the idea that on my return to Australia in 1986, I would pay my taxes with shovels — hence the shovel in the back of the court — in order to draw attention to what I believe is one of the real costs of military spending in day-to-day terms: the development cost to Third World people who are starved of the resources to live.

Needless to say, the tax office was not happy to receive shovels and I made other arrangements in light of that. Community Aid Abroad accepted them and they were put on a container ship to East Africa where they were subsequently used by the refugees when they returned to their farms in 1987. In my view that was a very appropriate way to spend my tax obligation for that year.

The second experience I want to share with you refers to one earlier this year. I spent six weeks in the Middle East as part of the Gulf Peace Team. The Gulf Peace Team was a group of 73 people who camped on the border between Iraq and Saudi Arabia prior to the outbreak of the Gulf War. We camped there because we wanted to be a nonviolent presence in what was, at that stage, potentially a war zone. We wanted to draw attention to the fact that there were a lot of ordinary men and women and children, concerned people around the world, who felt that there was an appropriate way of dealing with the Gulf conflict without the massive human slaughter and environmental destruction that was inevitably going to occur should war take place.

Needless to say, those of us in the peace camp, together with all the people around the world who endeavoured to stop the war, failed on this occasion. (But, I might add, the struggle to stop future wars goes on.) And we were there when the war broke out. For ten nights I listened as plane after plane after plane flew over our camp to bomb Baghdad. Having spent ten days in the camp after the war broke out and having heard the planes going to bomb Baghdad, we then spent four days and nights in Baghdad itself. And for four consecutive nights I watched from the Al Rasheed Hotel as the United States-led coalition bombed Baghdad.

One occasion I remember particularly: it was possible to see the bombing on a 360 degree perimeter. Because we had rooms on opposite sides of the hotel and we could cross from one room to another along the corridor, you could see the bombing on a 360 degree perimeter. During the days I was in Baghdad I had the opportunity to see the destruction of civilian infrastructure first-hand, including the now infamous milk factory that was supposed to be a chemical weapons plant. As I have said before, if it was a chemical weapons plant, seeing I spent two hours walking over it, I guess I am going to get very sick fairly soon. I have not, as yet, because it was a baby milk factory.

I also saw civilian victims of the war in hospital: several people, including children, who had been injured in the war. Needless to say, children are rarely soldiers. I saw one man who had been blinded, had massive shell wounds all over his body and who had lost a hand; it was completely blown off. It is very hard, your Honour, to look at someone in another country, and to know that your country is part of the coalition that is destroying their lives, and to know that, in fact, if you were paying taxes, then part of it would be used to finance that. As I travelled out of Iraq I had the opportunity to see some of the environmental devastation.

One aspect of the Gulf Peace Team experience that was important to me was the way in which it highlighted the role of the Australian Government in the Gulf War. It is clear that the Australian Government was actively involved in a particularly nasty way which attracted little media attention. A few weeks ago the Defence Minister was happy to boast about the US bases in Australia being largely responsible for tracking the Scud missiles launched against Israel. What he did not mention at all, in anything I saw, was the fact that no doubt those same US bases, and particularly the CIA-controlled base at Pine Gap, were also responsible for targeting information. What that means is that the satellites that circle the globe and relay information to the satellite ground station at Pine Gap gave the defence authorities in the United States the information they needed to target objects to be hit. And one can only wonder whether it was information supplied by these bases that was responsible for the bombing of that Baghdad bomb shelter where so many Iraqi civilians were killed.

The third element of my conscientious objection, and the last, is to do with my personal philosophy. For more than ten years now I have been deeply committed to nonviolence in at least three important ways. For me, nonviolence is a way of life, it is a way of trying to create the new human community (which I think we are all trying to build in one way or another), and it is a way of dealing with conflict. In relation to nonviolence as a way of life, I could talk about that for a long time because it means many things to me, but two things, I suppose, more than any.

Firstly, it is based on my commitment to the sacredness of all life. And, secondly, it is based on my commitment to the unity of all life. In my view, life is one of the things that makes this Universe magical. We know there is life on Earth; we do not know if there is life anywhere else. As Carl Sagan has reminded us all; the Universe is about 15 to 20 billion years old and life on this planet about four billion. One of the truly fascinating things about this Universe is that four billion years ago there was a strike of absolute pure magic and life started: one single living cell.

And something that is worth contemplating, your Honour, is that you personally are linked in an unbroken chain with that first living cell and, because matter and energy cannot be destroyed, with the origins of the Universe. You, personally, have a 20 billion year history. The point is, I have the same history, and so does everyone else in this courtroom, and every other living thing on this Earth. So when I talk about the unity of life I am not just talking about a fundamental nonviolent principle, I am talking about an ecological fact. To kill someone else, or to pay for it, is to kill a part of myself, and that I cannot do.

I spend all of my time, absolutely all of my time, doing constructive work to build this nonviolent world. My entire life is committed to making this world as good as it can be; for us to realise, as a civilisation, absolutely everything of which we are capable in every sense of the term, nonviolently. I am not interested in making better weapons but I am interested in trying to reach the very heights of human civilisation; so I spend all of my time on peace, on social justice, on development for all peoples and on the environment and trying to live sustainably with that environment.

And thirdly, my nonviolence is a way of dealing with conflict. As I said earlier, I do not think you can resolve conflict by killing people. There is a lot of research evidence to suggest that and, of course, just pure common sense. So my war tax resistance is one way of being nonviolent in the way I deal with conflict.

I am not hurting anyone. I am trying not to hurt people. I was part of the Gulf Peace Team, which I mentioned. I do a reasonable amount of solidarity work with the Koori community in Australia to support them in their struggle for justice. And I am an active member — not quite so active this year because of other things — of the Melbourne Rainforest Action Group which, among other things, is known for blockading rainforest timber ships in the Yarra River. It also, but much less publicly, spends thousands of hours of its members’ time quietly trying to convince the community of Melbourne and of course Australia and ultimately the whole world, that we cannot keep consuming rainforest timber, because if we keep logging rainforests at the rate we are doing it now — 20 square kilometres a day — the planet will not be able to sustain higher forms of life in about 20 to 30 years.

So, nonviolence is a way of life, a way of building the new world community and it is a way of dealing with conflict. It is based on the sacredness and unity of all life and a respect for that life. In simple terms, I do not want to kill anyone nor do I want to pay anyone else to kill people for me. Military taxes violate my conscience and my commitment to nonviolence, as well as every standard by which human decency and morality can be measured.

Now, I am going to outline briefly the legal grounds which I hope will enable you to find in my favour today; there are five. Firstly, I would like to argue that the taxes have, in fact, been paid. In some years I offered the tax office payment in kind: 94 shovels to represent the development cost of military spending; 104 trees to represent the environment cost; trailer loads of Koori land to represent the social justice cost, and so on. But, while they have not been accepted, I have, in every case, donated the equivalent money to groups that accord with my conscience.

So, there has been no intent on my part to gain personal benefit from this activity. I am happy to pay my way as a member of human society; it is just that I am particular about how it is done. The money has been donated to Community Aid Abroad for use in the Third World; Friends of the Earth for a more environmentally harmonious world; to Amnesty International for human rights; People for Nuclear Disarmament to try to make the world more peaceful; the Australian Nonviolence Network, which links a lot of these groups and propagates an awareness of nonviolence; the Peace and Development Foundation, which has similar aims; the Koori Information Centre, which is a support network for Australian Aborigines, and the Relief Society of Tigray, which does relief work in the Horn of Africa. And I have receipts for those payments. Well, when I did a final check a couple of days ago, I am actually missing a couple for very small amounts, but 95 per cent of it is here in receipt form as proof that I actually paid the money.

The second ground I want to argue is that the taxes are not required to be paid because they are a violation of my right to freedom of conscience.

HIS HONOUR: Just a moment. I will mark those exhibit A.


HIS HONOUR: That is a bundle of receipts. Have you seen these, Mr Mazurkiewicz?


HIS HONOUR: Right. Yes, Mr Burrowes.

MR BURROWES: Thank you, your Honour. Secondly, I would like to argue that the taxes are not required to be paid because they are a violation of my right to freedom of conscience under Australian and International Law. Your Honour will be aware of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10 December 1948, and the International Covenant on Civil and Political rights adopted on 19 December 1966. According to Article 18 of both of these covenants, I have the legal right to conscientiously object to paying war taxes — that is my interpretation — which are used by the Australian Government to finance military activities and the arms race, and I will just read the two very brief relevant sections. Article 18:

Everyone shall have the right to freedom of thought,  conscience and religion. This right shall include freedom  to … manifest [their] … belief in … practice.
No one shall be subject to coercion which would impair [their] freedom to have or to adopt a religion or belief of [their] choice.

The point is that these are part of international law and also Australian law because the International Covenant on Civil and Political Rights is attached to the Human Rights and Equal Opportunity Commission Act of 1986.

HIS HONOUR: How do these become part of Australian law, did you say, under the Human Rights and Equal Opportunity Commission Act?

MR BURROWES: The International Covenant on Civil and Political Rights is attached as one of the schedules — I am not sure which one, sorry — to that Act.

HIS HONOUR: Yes. It is schedule 2, I think.

MR BURROWES: And I have actually marked the relevant part of them.

HIS HONOUR: Yes. But is there a section of the Act which gives this the effect of law in Australia?

MR BURROWES: To be honest I am not sure, your Honour. My interpretation is that if there is a freedom of conscience provision in the Charter and we have adopted it as a schedule, then it has no meaning unless it is relevant to the Australian law, but in any case, I am happy to leave … [indistinct].

HIS HONOUR: Yes. Well, the usual position is that international treaties do not become part of the domestic law of a country unless that country expressly adopts them as part of its own law.

MR BURROWES: And adoption as a schedule within that Act is not the same thing?

HIS HONOUR: Well, it appears to be a schedule to the Act. I am not familiar with the Act and at the moment I am not aware of any section in the Act which gives the convenant the force of law within Australia.

MR BURROWES: Right. Okay. Well, I am afraid I cannot help you; I do not know myself.


MR BURROWES: To be honest, I have put together enough law to make this defence credible. I am interested in my conscience. Thirdly, I would like your Honour to consider the fact that the taxes are not required to be paid because they are a violation of my legal duty to make moral choices under international law.

Your Honour will be aware of the Nuremberg Tribunal. This was established after the Second World War to try senior Nazi government officials for their part in World War II. They used as a defence the defence of superior orders, which effectively means, of course, that Hitler told them what to do; therefore they are not guilty; therefore they are not liable for punishment.

The court, as you are probably well aware, found that the fact that a person was ordered to kill or torture in violation of the international law of war has never been recognised as a defence. The true test, which is found in varying degrees in the criminal law of most nations, is whether a moral choice was, in fact, possible. Superior orders are no defence.

Now as a result of that tribunal finding the International Law Commission was asked to formulate the principles of international law recognised in the Charter of the Nuremberg Tribunal and to prepare a draft code of offences against the peace and security of humankind. They did that and one of the interesting fallout items was the recognition that international law is not confined to the relations among states. An individual who commits an act which is a crime under international law is responsible and consequently liable to punishment. Now my concern here is that obviously I am trying to avoid whatever punishment will come from future courts that hold us to account for having paid for the military devastation that we are currently inflicting on the planet. According to Principal IV specifically it says that:

The fact that a person acted pursuant to order of [their] government or of a superior does not relieve [them] from responsibility under international law, provided a moral choice was in fact possible to [them].

I have got some documentation on that. The fourth ground that I am asking your Honour to consider is that the taxes are not required to be paid because they are used for illegal purposes. Your Honour may be aware that there are already a significant number of international laws which outlaw not only a great deal of military activity but particularly existing nuclear weapons and aspects of nuclear strategy. Just briefly, I will pick a couple of highlights out of that existing law.

The Declaration of St. Petersburg outlaws weapons which cause unnecessary suffering. The 1907 Hague Convention, in its preamble, states that ‘inhabitants and belligerents remain under the protection of the principles of the law of nations, the laws of humanity and the dictates of the public conscience’. Article 23 prohibits the destruction of enemy property. And I have personally witnessed, during the Gulf War, destruction occurring in violation of that law. Nuremberg Principle VI(a) outlaws ‘crimes against peace’ which includes planning, preparing, initiating or waging a war of aggression. The Geneva Protocol 1 of 1977 prohibits warfare which causes widespread, long-term and severe damage to the environment, and, again, I have personally witnessed such damage. Article 48 reaffirms the obligation to distinguish between combatants and civilians which very few military weapons can do of course. And I have seen civilian victims of war. Article 51 prohibits attacks or threats of violence against civilians. Separately from that, of course, the Universal Declaration of Human Rights, which I mentioned, protects the rights to health, a pure environment and development, which of course cannot be guaranteed given the misallocation of resources that military spending represents.

Now, again, the role that the US bases in Australia played in the Gulf War is to me direct evidence that the Australian Government was guilty of these sorts of violations. And the adoption of the Geneva Conventions Act is one example of my interpretation of how these laws have been regarded as effective in Australia.

Finally, I would like to argue that the taxes are not required to be paid because this course of action will help to prevent the imminent peril of nuclear holocaust. This is an Australian law — that of ‘necessity ‘ — and under this defence the person who acts in such a manner as to commit a crime would be excused from liability for this crime on the basis that other human activity or natural forces have produced a situation in which were he or she not to act greater harm would result.

There are three provisions of ‘necessity’ which Young CJ and King J in the Victorian Supreme Court have nominated.

(i) ‘the criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom [they were] bound to protect.’ And I must say I feel bound to protect all other species on this planet.

(ii) ‘the accused must honestly believe on reasonable grounds that [they were] placed in a situation of imminent peril.’ I believe that we are in such peril. Furthermore, I think the evidence is clear that what civilisation has to contend with in the next ten years alone — in terms of the ecological imperatives and particularly in relation to military spending — is going to require tremendous imagination and energy.

(iii) ‘the acts done to avoid the peril must not be out of proportion to the peril to be avoided.’ Well my minuscule taxes, I am sure, are hardly out of proportion to what I am concerned about.

The final thing I want to say in relation to the legal argument, which might address some of the issues you have already hinted at, is that I am very conscious of the fact that it is possible to present arguments — and I guess John [barrister for the Australian Taxation Office] is going to do that shortly — that suggest that there is no legal connection between taxes and military spending, or that international law, in fact, is not applicable in Australia.

In fact, after the Magistrates’ Court hearing on this case in 1989, about six of us spent 18 months trying to put together a High Court challenge to argue that military taxes are illegal. But the problem, simply — and I might add we had some of the best international lawyers in the country helping, including one who is now a judge on the World Court — was that it was impossible to construct an acceptable legal argument based on the sorts of reasons I have given. The main problems included the issues of whether my taxes are connected to the military spending and whether international law applies in Australia.

Now I think it is important to recognise these problems. But what it does, as well, is highlight the fact that the law is a social construct. And I think that is important too. The law is created by particular people, largely within a particular historical context, in order to do very particular things. So in our case, for instance, white Australian law is largely the product of an earlier historical period in another country. It was created by white middle and upper class men during the rise of capitalism in the 18th and 19th centuries and it was largely concerned with protecting private property, privileges and the institutions of state.

And that is why the law is very concerned with property and property rights, as well as the power of the state (including the Tax Office), but is relatively silent on the question of human rights, environmental rights and the rights of women as well as indigenous and Third World peoples. So, according to this law which is constructed in a very particular and narrow way, it is legal for a homeless child in Melbourne to live in poverty but illegal for that child to steal food to eat.

According to this law, it is legal to deny, or the law is very weak in protecting, the human needs of women and indigenous peoples. According to this law, it is supposed to be legal for non-Aboriginal people to occupy the land of Aboriginal Australians, or Kooris as they prefer to be called, despite the fact that Europeans invaded and occupied this land by force. According to this law, it is legal for 40,000 Third World people, mainly children, to be systematically starved to death each day while the world spends $2 billion on weapons and warfare in order to violently defend the power, profits and privileges of select national elites. According to this law, it is legal to destroy the global environment, including the world’s rainforests, despite the horrendous implications this has for our planet and for human civilisation. And, according to this law, it is legal to drive non-human species to extinction.

So, in other words, the law is very selective about what it protects. It outlaws theft and imposes heavy penalties on thieves, and yet it fails to provide an adequate basis to act against those who threaten us all with nuclear extinction. It makes it hard for people like me because the arguments I am presenting do not seem to fit into the legal framework as neatly as they should; they are either defined out of existence or at least out of relevance.

As a result of this particular social construction, a court, like the institution of Parliament, can easily become an outdated forum in which we play roles — whether it be judge, tax office representative, barrister, media representative or activist if you like — which can be used to separate us from the reality of the ecological imperatives that are overtaking us all. And yet, I have no doubt that each one of us, in our own particular way, is very concerned about each of these crucial issues. The question is: how can we deal with them adequately?

It is a bit like saying that we have got a set of problems, called one to ten, and we say: now, here is a box, and the solutions to problems one to ten are in that box and we are going to find all the answers in that box; we are going to find all the answers about my war tax resistance in this particular conception of law. But the problem is that the answers are not in that box; they are in this box over here and we have not even taken the lid off yet to have a look. What that means ultimately is that the frameworks we use to deal with the problems the world faces have got to be very different from the ones we have got now because these ones are not adequate.

So what I am saying is that the law and the Parliament itself are not real; they have been created to serve particular human ends, but they do not address the needs of ordinary people. The people, however, are real; and so often they suffer because this institutional framework we have created is incapable of responding adequately to their needs.

In all those moments of quiet contemplation when we sit pondering the future of this Earth and the lives of our children and the future of all of us, none of us can ignore the reality of the threats which confront us all. The point is that many of these threats are directly linked to military spending and we pay for that spending with our taxes.

So, I am asking you today, in effect, to put aside arguments that claim that there is no link between my taxes and military spending, because even if that is true legally, it is a fiction. It is a way of denying individual responsibility and a recipe for collective inaction. I want you, if you will, your Honour, to refuse to base your decision in this case on a sterile interpretation of the law. I am asking you to be imaginative, to be creative, to interpret the law according to the highest ideals, rather than the selfish interests, of the people who put this law together; to make a decision that recognises the needs and rights of all people; a decision which is based on the notion of justice for all people; and a decision which reflects my right and my duty to refuse to pay taxes for war.

Needless to say, I have a very long term view of this struggle, and I do not think it is all going to finish today. But you do have an opportunity to use your power to demonstrate that the law can be used for visionary purposes to support the struggle to make it a more just and peaceful world.

In my view, the very foundation of human society is the individual conscience. I believe it is important that society recognises the right and the duty of each individual to live by their conscience. And I am asking you to acknowledge my right and my duty to live by my conscience in your decision today. Thank you, your Honour.

Published on February 18, 2012 at 7:31 am  Comments Off on Court Defence  
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