What is Strategic Litigation?

Possibly the most famous example in “Australia” is Mabo (No 2) v Queensland where the Meriam people of the Mer Islands challenged Queensland laws that sought to claim ownership over their lands.

The test case challenged the long-held-colonial notion that the lands across the continent belonged to nobody when white people first arrived – the doctrineA framework, set of rules, procedural steps, or test, often established through precedent (q.v.) in the common law (q.v.), through which judgements can be determined in a given legal case. See common law. See precedent. More of ‘terra nullius’.

In its ruling, the High Court declared that no such thing as ‘terra nullius’ (the legal foundation upon which land dispossession had been justified) had ever existed.

While this is a positive outcome, it is important to acknowledge that although the court formally recognised the legal fallacy of terra nullius, it simultaneously validated the theft of land and made no determinations for compensation for land that would not be able to be able to be recognised under Native TitleA form of communal title whereby land is not owned but is used by those who have rights over it. Describes traditional Aboriginal rights over land in Australia. More.

Image: Yarra Bank Films and Trevor Graham

An example of strategic litigationCourt proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding. More is Toonen v Australia, a case that led to the repeal of sodomy laws in Tasmania and contributed towards LGBTQIA+ rights being recognised as human rights nationally.

In 1991 in Tasmania it was a crime for two adult males to have private, consensual sex.

Toonen complained to the Human Rights Committee that the law was in violation of article 17 of the International CovenantAn agreement creating an obligation contained in a deed (q.v.) or land title. A covenant may serve the same purpose as a bond (q.v.). More on Civil and Political Rights. As a result he lost his job as General Manager of the Tasmanian Aids Council when the Tasmanian Government threatened to withdraw funding unless he was fired.

Toonen later took the matter to the UNHRC who held that because of Tasmania’s law, Australia was in breach of their treaty obligations.

The Federal government then passed a law that overrode Tasmania’s law and ended the criminalisation of homosexual sex.

Image: Sydney Morning Herald - https://www.smh.com.au/politics/federal/how-a-tasmanian-gay-rights-battle-influenced-the-world-20140412-zqt2p.html

Community Legal Centres engage in strategic litigationCourt proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding. More all the time. 

Many types of cases can be used to highlight failures in institutions and laws.  Recent cases that had strategic elements (wanting to make changes for the broader community as well as those individually involved in the case):

• the Tanya Day Inquest, where the family of Tanya Day successfully argued that the Coroner should take systemic racism into account when considering the cause of Tanya’s death,
• the Occupy Melbourne litigationCourt proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding. More explored the powers of the Melbourne City Council to ban people from protesting within Melbourne,
• the Leadbeater Possum case exposed the failure of VicForests to comply with Commonwealth wildlife protection legislation and
• the Haile-Michael v Konstantidis litigationCourt proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding. More exposed the practice of racial profiling in Victoria Police.

These cases were run by Victorian Aboriginal Legal Service, Human Rights Law Centre, Fitzroy Legal Service, Environmental Justice Australia and Flemington & Kensington Community Legal Centre.