Good laws and bad laws

Neil Smith

Examples? I have to say that the tendency of some correspondents on this site to draw comparisons between Tasmania and the Third Reich is rather unhelpful, given the overtones of disrespect it somehow seems to have for the victims of what was the (at least, equally) worst government this planet has had to endure. And also given the vast difference of degree in the abuses of power happening in the two situations. Tasmania is not like 1930s Germany, and we all know it. But it is also a plain historical reality that the Third Reich was not born intact overnight. It started by exploiting the feelings of a people disgruntled with the outcome of WW1 and moved to perverting and then sidelining the parliamentary process, and then introducing ever more draconian laws (and eventually to ignoring all laws). But the German people were not particularly gullible, uneducated or inherently immoral. The country was, as it is today, part of what used regularly to be called the “first world”, of great artistic and scientific sophistication, supposedly quite different from places many liked to view as “primitive” and the logical place for dictatorships. Tasmania in 2007 is certainly NOT like the Third Reich, but there is nothing so superior about “us” as a people which provides a 100% guarantee that we couldn’t go down that track in the future. And unfortunately the same can be said about any place in the world.

POLICE Commissioner Richard McCreadie used the words “lawful”, “unlawful” and “within the law” ten times in his letter to the Editor of the Mercury on Tuesday. And for him, while acting in his official position, that is quite appropriate. He is paid to uphold the law. The content of the law is irrelevant. Making of laws is for others.

But for Mr McCreadie to start suggesting changes to the law to enable some police costs to be recovered from a certain class of offender is an entirely different thing. This puts him in the same position as any other member of the public. That is, a human being. Political.

And so it opens up all sorts of questions which need to be debated.

Firstly, would such a new law be a “good” law? Would it be in accordance with the general community perception of what is moral? To what extent is it reasonable to make laws which apply to some groups and not to others? To what extent should we allow “the law” to rule our behaviour anyway?

The law, like Parliament, is a human creation which evolved supposedly to keep society operating on an even keel. To ensure that crimes which are held almost universally to be wrong (murder, say) are very effectively discouraged. And to ensure that arbitrary exercises of power over innocent people (as used to occur when the world was run by a string of monarchs) do not happen. And also to set the stage (via the doctrine of precedent) so that what was considered fair for one person in one case is also what is applied to another person in another case with broadly similar facts.

I hear some readers laughing already, but to some considerable extent the legal system as we know it does actually work. And indeed it is possible to argue that as a system it is so important and useful that all citizens should adhere to every aspect of the law at all times – to do otherwise is to begin undermining a successful institution which protects us all. The trouble with this argument is that it is rather easy to find examples of laws being SO bad that it is morally impossible to have any respect for them at all. Of course there may still be very few people who deliberately contravene them, but that is likely to be simply out of respect for the scale of the penalty.

So far I have not particularised any of these comments to Tasmania or to Australia. And why should I? All countries of the world in all fairly recent times have had laws. If we are going to be consistent we can’t argue that Tasmanian law has to be respected simply “because it is the law” unless we extend the same level playing field to France, Mexico, South Africa, Burma or even Hitler’s Third Reich. We DO have to consider whether the law in question is a “good” law.

Examples? I have to say that the tendency of some correspondents on this site to draw comparisons between Tasmania and the Third Reich is rather unhelpful, given the overtones of disrespect it somehow seems to have for the victims of what was the (at least, equally) worst government this planet has had to endure. And also given the vast difference of degree in the abuses of power happening in the two situations. Tasmania is not like 1930s Germany, and we all know it.

But it is also a plain historical reality that the Third Reich was not born intact overnight. It started by exploiting the feelings of a people disgruntled with the outcome of WW1 and moved to perverting and then sidelining the parliamentary process, and then introducing ever more draconian laws (and eventually to ignoring all laws). But the German people were not particularly gullible, uneducated or inherently immoral. The country was, as it is today, part of what used regularly to be called the “first world”, of great artistic and scientific sophistication, supposedly quite different from places many liked to view as “primitive” and the logical place for dictatorships. Tasmania in 2007 is certainly NOT like the Third Reich, but there is nothing so superior about “us” as a people which provides a 100% guarantee that we couldn’t go down that track in the future. And unfortunately the same can be said about any place in the world.

But in talking about bad laws it is not necessary to look at such extremes. Laws against mixed marriages in apartheid South Africa might be one step lower. Compulsory land acquisition in Zimbabwe?
John Howard’s special intervention in the Northern Territory, applying to indigenous people only? Mandatory detention of asylum seekers? In 1920s Shanghai there was an ordinance prohibiting the presence in the city park of “dogs and Chinese”. History shows that morality eventually trumps bland and uncritical legality. Few people now support the idea that it was OK to sell human beings as unpaid labourers, to keep Nelson Mandela in jail for 30 years, or want to pursue the arrest warrant issued against Xanana Gusmao as a terrorist.

I’m not greatly impressed then by the notion that a given action is right if it’s legal and wrong if it’s not. The comment (variously attributed to Thomas Mann, Thoreau and even Gandhi) that at certain times and places “the only place for an honest man is in jail” is closer to being germane. So what is a good law? There are plenty of people who devote a considerable part of their life to that sort of question and might give a better answer than I can. But I suggest that if it doesn’t generate widespread public outrage it’s in the running. Laws against murder, theft and wilful property damage are examples. Another test is the universality of application. Does it apply equally to all, or does it seem to target a particular class of people? This is an interesting one. The 1967 referendum gave the Commonwealth the power to make laws especially for the Aboriginal people. It was hailed as a victory at the time, but with Howard’s latest moves in the Territory might it have lost its gloss?

And it’s worth considering also how “special and local” a proposed law might be. Is it the sort of law prevalent in many different jurisdictions or something dreamed up on the spot (in Tasmania, say) by a party in power who are running their own special agenda? It could and does matter. If a law does not mirror what is thought generally acceptable in other places there is a pretty good chance there is a major flaw in it.

If there really is an intention on the part of the Tasmanian government to introduce cost recovery from forest protesters (as distinct from such a suggestion from Mr McCreadie alone) there is an uncomfortable parallel with another episode of recent Tasmanian history. In 1992 the Groom Liberal government made several changes to the Forestry Act, including increasing the penalty for “interfering with the operation of a vehicle or other equipment in an area of State forest in which forest operations are being carried out”. The maximum penalty was instantly increased from $500 to $20,000 or one year in jail. Furthermore, the same penalty could be applied if there was no actual offence but the magistrate could be convinced that a police officer reasonably suspected that a person had the “intention”

to interfere. The only justification for the huge penalty which was put to parliament was that some forest harvesting equipment was worth large amounts of money – despite opposition members pointing out that, being a fine, the money would go to consolidated revenue and not as compensation to the machine’s owners.

It was very clear that the intention of the new penalty was simply to discourage forest protest. Then opposition member, later Attorney General, Judy Jackson said it was ” a draconian and intimidatory provision to try to put people off from protesting” (Hansard, 6 May 1992, part 3). Even the man who is now our Premier, Paul Lennon, had this to say: “It matters not, as I understand it, what the government hopes will happen; quite frankly, at the moment we are not dealing with a normal company in Associated Pulp and Paper Mills Ltd.

I wish we were, given the importance to Tasmania of its operations which affect the employment of so many people. Proposed new subsection (1A)(b) will cover a picket: ‘interfere with the operation of a vehicle or other equipment in an area of State forest in which forest operations are being carried out…’ If we have the boss on a bulldozer and the workers there trying to defend their jobs, no one will convince me – whether it is the intention or otherwise – that it (the law) will not be used against them.” And a little later: “it is possible that not long after we put the rubber stamp on it, in the next twenty minutes or so, North Broken Hill is going to be rushing out and embarking on a whole new strategy against its truck drivers and contractors which has been ongoing for three years. The Derwent Forestry Company and others might want to make arrangements to get a lower cost for getting the wood out of the forest and when workers try to defend their jobs they will find that section 46 of the Forestry Act is being used to stop them and we will have workers in the courts facing fines of $20000 or twelve months imprisonment.”

Our Paul wasn’t arguing on behalf of greenie forest protesters that’s for sure – he didn’t like them any better then than he does now – but he was making the point that a badly thought out and draconian law was more than likely to be used against whomsoever the government had on its hit list at the time, and he didn’t like the implications.
(Aside: makes eerie reading, doesn’t it, seeing him championing the little guy and distrusting corporate power, given the sorts of things he’s done lately!)

Mr John White, then a member, more lately of TCC fame, was also interesting: “Certain people doing certain things will cop certain penalties because we do not like what they are doing; we will tolerate other people doing certain things even if they are doing the same as the first group. The moment we start having different penalties for basically the same sort of act, whether it is done in the forest or at Risdon Cove, whether it is done in support of East Timor or Amnesty International, where do we end up? That is the principle and that is the point.”

But the government had the numbers. The new laws were passed without amendment. But, interestingly, Paul managed to tease out the amazing verbal undertaking from the Premier Mr Ray Groom that it was he (Mr Groom) who would decide whom to use the laws against – they would not be used in an “industrial” situation but only against people trying to protect the forests! So that despite the draconian nature of the law itself, the discriminatory and blatently political way in which the government intended to use it was even worse!

Now this “special law to be used against special people” had an interesting fate. It, along with most other penal provisions of the Forestry Act, was repealed in 1999 by the Bacon Labor government.
Much to the amazement of Peg Putt, the sole Green parliamentary member at the time, who couldn’t believe she was hearing the Forests Minister, Mr Lennon, correctly. Labor in government somehow didn’t seem to be displaying the fiery contempt for those laws they had done seven years earlier. After all, they had seemed pretty effective against the greenies at Mother Cummings. The repeal of a whole swag of laws that could be used against forest protesters was a really way-out idea. But these local laws were too discriminatory – they gave Tasmanian logging companies an unfair advantage over companies on the mainland where forestry activities were not so specifically protected against the activities of protesters! Poor Paul! The Howard machine was rolling, and if Tasmania wanted the money which would flow from compliance with National Competition Policy, he had to get his act together.

It’s anyone’s guess at this stage whether such a precedent might spell doom for a proposal to recover costs from protesters via statute. But one would hope so, for such a law would be demonstrably bad. The reasonable government response to Mr McCreadie’s call would be to increase the police resourcing, so that there were always plenty of officers available to fight real crime while others were wasting their time dismantling some protester’s tripod. Forest protests are not going to go away, and nor should they, while the laws and policies in Tasmania are still geared to giving away our native forests for a pittance to the corporates, while ignoring the effects on our water supplies, our natural heritage and on the increased global warming which is rapidly taking the whole world down the tube. To be sure, not everyone agrees with the undesirability of any of these things, but there is certainly a significant proportion of the population which does. And therefore any further “anti-protest” laws are only going to further harden the divisions in the community. Prima facie, laws which divide rather than unify a community are BAD and to be resisted should they be enacted.

The point of public protest is to influence opinion. Although the first choice is to use strictly legal means, that avenue doesn’t always have sufficient impact. Indeed, some would say its boring.
Governments have continually managed to stare the protesters down and maintain the status quo. As long as forest protests don’t stray into the realms of violence against persons and deliberate property damage (and they don’t) a little mild illegality might not only be OK but our public duty. We already cop the fines. A law supposedly to recover police costs is not really that at all. It is just another weapon to use in an attempt to stifle protest – so it’s quite likely that Mr McCreadie was just uttering words put into his mouth by others. Just as the 1992 law was not designed to compensate machine owners for damage (none of which has ever been perpetrated by forest protesters anyway), and nor was it a revenue-raising venture. It was simply another strong-arm tactic to maintain the dominance of the exploiters and further sideline the group in the community which opposed them. The mighty did it because they could. It was purely a political act.

If you, the reader, happen to support the move for a cost-recovery law, it’s because your political stance is pro-forestry, isn’t it?
Just as you think that a pulp mill is such a terrifically good idea that the throwing overboard of all semblance of due process and the passage of a very special kind of enabling law is justified?

Allana, what you did was not only beautiful and creative, it was useful to an important cause and what’s more, even though it was illegal, it was the right thing to do. Good luck!