Why some activists break the law – and how to respond

It’s no secret that some activist organisations believe they occasionally need to break the law in support of their “just cause.” And that’s a well acknowledged challenge for issue managers and senior executives trying to navigate their way through responding to a high profile issue.

However it’s a position rarely articulated as explicitly as in a recent speech by a senior advisor to Greenpeace.

Barry Rafe, a Director of Greenpeace Australia, told a governance conference this month that with activist organisations, there is an element of endorsing illegal behaviour. “That’s an area I struggled with because we teach Directors that if it’s illegal it’s unethical.” However, he said it was a struggle he had to get over. “I’ve learnt that as humans we’ve got a human right to break the law. There are consequences, but we’ve got a… right to break the law.”

Mr Rafe, a respected actuarial consultant and company executive, said: “So we do break into things, we do stop businesses, we do blockades where business is stopped.”

“If we’re talking activist organisations . . . you don’t go out of your way to break the law, but sometimes there might be situations where you might need to make a point.”

The predictable corporate response is to call in the lawyers. For example, lawyers for Adani recently issued a blunt warning to protesters against the planned Carmichael coal mine in Queensland that the company would use “all steps available to it” and threatened legal injunctions against the group or suing them in court.

But the courts seem to take a rather different view. When anti-coal activist Jonathan Moylan issued a hoax news release which briefly wiped $300 million from the market value of Whitehaven Coal, he faced up to ten years in prison.  But Judge David Davies said he accepted Moylan had no concept of the ramifications of his deception, and that he was contrite and remorseful.

“You did it for motives that I accept were sincerely held by you, even though your methods of achieving them were wrong,” Justice Davies said, and Moylan walked to freedom with a good behaviour bond.

And when actress Lucy lawless (aka Xena Warrior Princess) joined Greenpeace protesters on a three-day sit-in to block the departure of an oil drilling ship from a New Zealand port, they faced up to three years behind bars. But Judge Allan Roberts handed down a community work order and made them repay some minor damage at the port. Importantly, he declined to consider any order for the oil company’s claimed $600,000 in reparation because, he said, that would be “unfair.”

Then there were the six Sydney housewives who admitted trespassing in a local supermarket to protest against claimed genetically modified ingredients in a brand of baby formula. Magistrate Susan McIntyre placed them all on a good-behaviour bond, saying she recognised their “high moral standing” and their right to peaceful protest. “But you will confine yourself to legal behaviour,” she warned, “or it will come to nothing.”

So what is the best strategy when facing lawbreaking activists? Remember that high profile issues are seldom satisfactorily resolved in court. Any executive who’s inclined to threaten a heavy legal response would be well advised to heed these cases. Everyone remembers that hero David defeated villain Goliath, but no-one knows what they were fighting about or whether, maybe, Goliath was legally in the right.

About managingoutcomes

Issue and crisis management expert
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