A FEDERAL COURT judge went against Commonwealth recommendations when he gaoled none of the Pine Gap 6 who last year infiltrated the United States spy base at Pine Gap, south-west of Alice Springs.
Justice John Reeves represented the Northern Territory Supreme Court on Monday 4 December in the Brisbane Federal Court Building, where he sentenced James Dowling, Andrew Paine, Franz Dowling and Tim Webb.
Two of the convicted Pine Gap trespassers, Margaret Prestorius and Pauli Christie, were in a Cairns court and sentenced remotely from the Brisbane court.
The six, who call themselves "Peace Pilgrims", failed in their defence of "necessity" to commit a crime to prevent continued war crimes. They want Pine Gap closed, as they believe the secret base digitally guides missile and drones responsible for the mass killing of civilians in Iraq and Afghanistan.
Authorities describe the 50-year-old centre as "the Joint Defence Facility Pine Gap", but there is little doubt American militarists are calling the shots there.
Some critics of Pine Gap claim its presence makes Australia a potential nuclear target.
The Pine Gap 6 were charged under a 1952 Cold War Commonwealth Act, which carries penalties of up to seven years' gaol time. The Commonwealth prosecution asked for gaol for all the convicted, bar Franz Dowling, 20. Justice Reeves said he did not accept the submission by Mr McHugh for the Crown that entry into the base "struck at the heart of national security".
The judge said offences were at the lower end of the scale of the Defence (Special Undertakings) Act and defendants co-operated with the Australian Federal Police (though most remained silent at official interviews.) The Pine Gap 6 were fined amounts between $1,250 and $5,000.
Fining Jim Dowling, 62, the largest amount, Justice Reeves said gaoling him would not act as a deterrent, but it would have the opposite effect of making him a martyr.
Mr Dowling said, after the case, he would not pay the fine.
Justice Reeves told Mr Dowling, he had the legal right to express his views on Pine Gap provided he acted within the law. The judge also reaffirmed his resistance to the necessity defence.
"You're wrong to say that Pine Gap is itself a war crime," the judge said. "No one would accept this view."
The relatively large fines could deter a future tactic of mass trespass of Pine Gap. One Pine Gap 6 supporter suggested a "Close Pine Gap Party" should run candidates at the next Senate elections.
Whitlam and the Falcon
In 1975, Labor Prime Minister Gough Whitlam told the nation he did not know what was going on at Pine Gap.
In his 2015 history of the Australian Security Intelligence Organisation (ASIO), former military intelligence officer John Blaxland said Whitlam told ASIO director general, Peter Barbour, to stop talking with the CIA. Barbour said the Prime Minister refused to put the instruction in writing and so ASIO disobeyed.
Christopher Boyce is a former American defence industry employee who was convicted for selling U.S. spy satellite secrets to the Soviet Union in the 1970s. Boyce, in his 20s at the time and interested in falconry, was the subject of a book and movie The Falcon and the Snowman.
Boyce claimed he became a spy after reading misdirected CIA reports of how the agency planned to help bring down the Australian Government over perceived Whitlam threats to close Pine Gap.
The subsequent dismissal of the Whitlam Government by Governor-General Sir John Kerr has proven a deterrent to Labor opposition to Pine Gap.
In 2004, Midnight Oil frontman Peter Garrett had to repudiate his opposition to Pine Gap to join the Labor Party.
In 2008, the Rudd Government closed a loophole which allowed the acquittal of four 2005 Pine Gap political invaders, including Jim Dowling.
The four were convicted in 2007 and the prosecution appealed against the leniency of their non-custodial sentences. This opened the way for advocate Ron Merkel QC to lodge an appeal against the convictions, arguing successfully Australia had to be in peril from an overseas power to trigger prosecutions under the Defence (Special Undertakings) Act 1952.
The next year, the Rudd Government amended the law, giving the Commonwealth another crack at imprisoning trespassers of Pine Gap. So far, the Crown has been turned away again.
DISCLOSURE: Bernie Dowling is the brother of Jim Dowling and the uncle of Franz Dowling.
Bernie Dowling is also the author of the new release non-fiction book, Maaate! Bribe-Proofing the Public Purse Against Good Blokes.
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