Legal Campaign Tools

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There are a number of legal remedies that may be appropriate tools to assist to achieve the aims of a campaign.

Some legal processes are simple and can be carried out with limited assistance from lawyers, whereas other options are more complicated and may require significant legal expertise and financial resources.

Following in this section are some suggested processes for enabling your campaign to achieve its goal.

Injunctions

The law can also be used proactively to open up greater space for progressive causes and for activist movements. Injunctions. Injunctions can also be sought in order to achieve the goals of activist movements. For example a successful injunction was granted to prevent logging at Brown Mountain in East Gippsland after Environment East Gippsland successful won and injunction against VicForest in the Supreme Court.

Case Study

Following the violent eviction of Occupy Melbourne from City Square and persist Victoria Police and Melbourne City Council harassment of the relocated occupation in Treasury Garden an legal action was initiated in the Federal Court. The action sought an injunction on the enforcement of the Melbourne City Council Local Activities Laws which prohibited ‘camping’ and the ‘possession of things’ in relation to the Occupy Melbourne Camp. The defendant argued that such an interpretation of the by-laws and their enforcement breach the freedom of political communication protections in the Constitution and also rights relating to free speech and assembly in the Victorian Charter of Human Rights and Responsibilities.

The matter has not been adjudicated at the time of writing! However, the process of taking an injunction to support OM right to camp as a form of protest demonstrates tensions which can arise when using the law as a proactive rather then as a retrospective tool. For example:

  • Responsibility to whom? - The lawyer on the record acting in such an injunctions primary responsibilities need to be the court and to their client. There are no formal responsibilities to the politics or the movement or the movement more generally. This can create tensions when a more conservative legal argument may be more ‘win-able’ and therefore adopted in the legal proceedings, however, other members of the protest may see these arguments as too conservative and misrepresentative of the goals of the movement. Whilst there are clearly important legal, strategic and cost motivations for doing this, it is important to bear in mind that legal cases will often receive media interest and defendants may be positioned by the media as broader movement spokes people. Therefore, open communications between lawyers and defendants taking such test cases and the rest of the movement is essential, to the extent that confidentiality requirements from court 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, to put up specified structures etc. Be aware therefore that injunctions risk becoming an double edged swordthe conditions placed upon them can end up restricting and limiting what movements feel they are able to do. Make sure there are public, 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 massive commitment of time in preparing legal documents and attending court as well as commonly media interest. It means exposing yourself to media and public scrutiny and having some of your personal details made public. In addition, it means carrying and bearing the risk of adverse cost orders, which may be made against people taking legal action. It means taking on the responsibility of instructing lawyers about how to proceed in the matter, and it also may mean exposing yourself to public criticism (including from other activists) about how you have chosen to run the case. Therefore it is essential to extend legal support to defendant taking this sort of action, consider how we can as a movement support them in decision making and fundraising around such test cases.

Civil Proceedings

Civil legal proceedings against individuals, governments or companies may be appropriate in some circumstances. Consider lodging a complaint in the Magistrates’ Court where a relatively simple decision is required quickly.

Suing police has emerged as an important means of making the Victoria Police accountable and as a means for people who have been harmed by police misconduct to obtain significant redress for injuries, physical and psychological, that they have suffered. An increasing number of actions against the Victoria Police have been successful in recent times. A person who has been assaulted, wrongly detained or otherwise wronged by police may wish to take legal action. Make sure you seek legal advice about your prospects of success and especially about any costs implications before considering this course of action.

For information on this see Ian Freckelton and Tamar Hopkins ‘Legal Action Against the Police’ The Law Handbook online.

Complaint Mechanisms

Lodging a complaint with the Equal Opportunity Commission or the Human Rights and Equal Opportunity Commission is a relatively easy and cheap means of addressing an issue of discrimination.

One common, and low cost option, for resolving complaints about media reporting of activists or protests is to go to the Australian Press Council. While this can be effective, and require the media outlet involved to publish a retraction or clarification, it is worth bearing in mind that almost half of the membership of the 22 members of the Council are nomineesof media organisations which are “constituent bodies” of the Council. 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.

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.”

Complaint mechanisms exist to cover many government departments, such as the Australian Broadcasting Authority, Australian Competition and Consumer Commission and the police. Private industry has set up similar schemes such as the private utility and Banking Ombudsman 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 in areas such as planning and environmental law, tenancy and social security may also be worth exploring where a government decision is involved.

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. 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 practise for the FOI depratment to give you an estimate of costs before prceeding with your request, which gives you the chance to either opt out of the request or else ‘refine’ your request to a smaller set of documents.

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’

Note: The FOI fee can be waived if you can prove ‘financial hardship’; generally a photocopy of a current healthcare card sufficies to prove this. Be aware that otherwise 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 Litigation Against Public Participation (SLAPP) are legal suits taken against activists which are designed to intimidate the individuals involved, but also intimidate the campaign and the movement more broadly. It is an attempt by corporations to use the law as a weapon to enforce 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

(Coming soon)

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