Legal Campaign Tools
There are a number of legal tools that might help to achieve your campaign aims.
Some legal tools (or processes) are simple and can be done with limited assistance from lawyers.
Other processes can be more complicated and may need significant legal assistance and financial resources.
On this page:
- Injunctions
- Civil proceedings
- Complaint mechanisms
- Law reform
- Freedom of Information
- Repressive tactics Response
- Strategic litigationCourt proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding. More (coming soon).
Injunctions
The law can be utilised proactively to open up greater space for progressive causes and for activist movements.
Injunctions are court orders for someone to do or stop doing something.
Injunctions can be sought in order to achieve the goals of activist movements.
For example, an injunctionA court order which directs someone either to do, or to refrain from doing, a particular thing. An injunction may be interim (operative until further order) or perpetual (continuing indefinitely). More can be sought to prevent or stop illegal logging (see: Environment East Gippsland Inc v VicForests 2010).
Following the violent eviction of Occupy Melbourne ('OM') from City Square, Victoria Police and Melbourne City Council persistently used a range of legal and physical tactics to remove the the relocated occupation in Treasury Gardens.
A legal action was initiated in the Federal Court. The action sought an injunction to stop the enforcement of the Melbourne City Council Local Activities Laws prohibiting ‘camping’ and the ‘possession of things’ in relation to the Occupy Melbourne Camp.
The defendant argued that the Police and Councils' interpretation of the by-laws and their enforcement breached the freedom of political communication protections in the Constitution as well as breaching rights to free speech and peaceful assembly under the Victorian Charter of Human Rights and Responsibilities.
The application was unsuccessful.
The process of seeking an injunction to support OM's right to camp as a form of protest demonstrated the tensions that can arise when using the law as a proactive rather then as a retrospective tool. For example:
- Lawyer's responsibilities? - The lawyer on the record has primary responsibilities to the court and then to the client.
- There are no formal responsibilities to the politics or the movement.
- This can create tensions when a more conservative legal argument may be more ‘win-able’ used in the legal proceedings
- Other members of the protest may see these arguments as too conservative and misrepresentative of the goals of the movement.
- Although there may be important legal, strategic and financial reasons for using more conservative arguments, it is important to remember that legal cases will often receive media interest and defendants may be used by the media as spokes person.
- This is why open communication between lawyers, the client and the rest of the movement/collective is essential (to the extent that confidentiality rules and court orders allow).
- Injunction against whom? - Injunctions sought will often come with conditions.
- For example, OM sought an injunction which permitted them to protest in specified ways and to put up specified structures.
- There is a risk that injunctions can become a double edged sword - if the conditions end up restricting and limiting what movements feel they are able to do.
- Make sure there are open, political and strategic discussions about how to engage with this.
- Looking after defendants - putting up your hand to be a defendant in a test case is a scary process.
- It requires a big time commitment for preparing legal documents, attending court, and talking to the media.
- It means exposing yourself to media and public scrutiny and having some of your personal details made public.
- It also means carrying the risk of adverse cost orders - where, if you lose, you may have to pay some of the other sides legal costs.
- It means taking on the responsibility of instructing lawyers about how to proceed in the matter.
- You may be criticised by other activists about how you have chosen to run the case.
- Because of these things, it is important to support the defendant taking this sort of action, including in supporting their decision making and fundraising for legal costs.
Civil Proceedings
A civil proceeding is a legal proceeding that is not a criminal matter.
Civil proceedings have many other names. For example:
“suing someone” or
“mounting a legal challenge” or
“challenging a government decision”.
Suing police has become an important way of making Victoria Police accountable for bad behaviour. It can also be a way for people who have been harmed by police to get compensation.
An increasing number of actions against Victoria Police have been successful.
A person who has been assaulted, wrongly detained or otherwise wronged by police may wish to take legal action. If this happens to you, get legal advice about your chances of success and especially about any costs implications before starting this course of action.
For information on this check out the Police Accountability Project website and The Law Handbook online
Complaint Mechanisms
Making a complaint with the Victorian Equal Opportunity Commission and Human Rights Commission (‘VEOHRC‘) is a relatively easy and cheap way of formally lodging an issue of discrimination.
You can lodge a complaint with VEOHRC online or over the phone. Check out their website here.
There are also internal complaint processes for most government departments, including the police.
Private industry has set up similar schemes such as the private utility and Banking OmbudsmanA public official appointed to investigate citizens’ complaints against the administrative agencies of government, or against members of a particular profession. More offices.
These mechanisms are easy to use and usually free. Although complaints may need to be lodged by individuals, a large number of complaints can force a rethink of common practices and thereby achieve systemic change.
Administrative law remedies (such as Judicial ReviewReview by a court of an administrative act (q.v.) on the basis of fault in the decision-making process. Compare: review on the merits. More or Administrative Review) may also be worth exploring where a government decision is involved.
If you want to make a complaint about media reporting, you can go to the Australian Press Council.
While this can be effective, and require the media outlet to publish a retraction or clarification, it is worth remembering that almost half of the members members of the Australian Press Council are from media companies.
While a ‘balance’ of views are often represented in the panels considering each complaint, this does not necessarily make them entirely impartial in all circumstances.
Case Study:
In June 2004, a formal complaint against the Sydney Morning Herald was upheld (by the Australian Press Council) for its use of the terms ‘illegal immigrants’ and ‘illegal entrants’ to describe asylum-seekers.
The complaint was initially against the Sydney Morning Herald, but the Australian Press Council has also agreed to formulate general guidelines for Australian press against the use of these terms for asylum-seekers and refugees.
Mira Wroblewski, a refugee advocate, who proceeded with the complaint said:
“The term ‘illegal’ is used by the Government to vilify these people and to justify their treatment. It is one of a number of fear tactics being used to keep this government in power. I believe that the media should use the more accurate and respectful terms ‘asylum-seekers’ or ‘refugees’ to describe people who come to seek our help. They are not criminals. This has been supported by the Press Council decision.”
Law Reform
Law reform processes such as public inquiries occur at all levels of government, and provide an opportunity to present arguments and stories about issues of public importance.
Freedom of Information Act
Freedom of information (FOI) applications are becoming increasing useful in gathering information about government practices.
In the case of the Victorian situation, there are claims that the FOI process is becoming increasingly politicised, and hence less useful for accessing documents.
See The Age article by Farrah Tomazin – ‘New watchdog to guard public right to information’
Information on how to lodge an FOI claim is available on the Victorian Government’s Freedom of information website.
FOIs are cheap to initiate (the submission fee is less than $30 and you can ask for the fee to be waived – see note below).
However you should be aware that you may be charged for printing and search costs if the documentation generated through your request is substantial.
It is standard practice for the FOI department to give you an estimate of costs before proceeding with your request. This gives you the chance to either opt out of the request or else ‘refine’ your request to a smaller set of documents.
The FOI fee can be waived if you can prove ‘financial hardship’.
generally a photocopy of a current healthcare card suffices to prove this.
Even if you get the fee waived, FOI costs can grow as you are charged per documents for the ‘access’ fee in addition to the one-off processing fee.
Repressive Tactics Response
Activists also risk being subjected to SLAPP suits.
Strategic LitigationCourt proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding. More Against Public Participation (SLAPP) are law suits taken against activists. They are used to intimidate individual people and the campaign and movement more broadly.
It is an attempt by corporations to use the law as a weapon to enforceTo make people obey (a law, the terms of an agreement, etc). Also: enforceability. More silence onto their critics.
The suit launched by Tasmanian Forestry Giant Gunns Ltd against 20 (initial) defendants took years to resolve and even though Gunns ultimately lost the case, the proceeding nonetheless managed to tie many activists up in the court system for years and had a stifling effect on the movement.
For further information see Legal threats silencing activists.
For information on the Gunns 20 case see The Gunns 20 case study.
Strategic Litigation
Whether it is planned from the beginning of a campaign or becomes an option midway, strategic litigationCourt proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding. can be a valuable part of activism.
Learn more about Strategic Litigation including case examples here.
