What is Strategic Litigation?

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Activism can take many different forms and go down as many alternate paths. The objectives of an action may be to broadcast a campaign message, to stop work being done, or to challenge a particular law, legal status or official decision. This last category is known as strategic litigation.

‘Breaking the law’ to some extent is common in activism – it can be a known risk or happen accidentally. When we engage in activism it is often to challenge something that has become a societal status quo and around which certain legal protections have been installed to keep it as such. These legal protections can also be used as deterrents to scare people away from challenging them – and to punish those who do.

When someone does decide to engage in conduct or activism that breaks a law it can be used as a spring-board to challenge the validity of that law or the legal status of the thing they are campaigning against. Legal cases such as these are known as a ‘test case’ – that is, they ‘test’ the relevant laws.

Not all strategic litigation is triggered by someone being charged with an offence. It can include claims that Government decisions failed to take important things into consideration (like human rights or environmental protections), or that the decisions were made under a wrong interpretation of legislation. 

An example of strategic litigation 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 Covenant 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

Another famous example 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 doctrine 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 Title.

Image: Yarra Bank Films and Trevor Graham

Community Legal Centres engage in strategic litigation 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 litigation 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 litigation 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.

Like protesting, public interest litigation does not need to have a successful legal outcome to change public awareness about an issue. 

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