The Right to Protest
There is no right to protest in Australia - not in the constitution, not in
policing of protests, and certainly not in anti-terrorism laws. And beyond the
maze of criminal law, there is an increasing trend of people being sued for
protest activity. The closest we get to a right to protest is a right to protest
ineffectively - behind a fence, around the corner and a long way from the object
you might be protesting against. Any protest which is beyond the merely
symbolic, and even many protests which are only symbolic, will surely be
unlawful in one way or another - obstructing traffic, trespass, interfering with
business, public nuisance. Quite apart from the various torts you can be
directly sued for (eg. trespass, nuisance, etc), the unlawfulness of these basic
protest actions (and any arrests) can also form a necessary element for other
claims against you (eg. interference with contracts, conspiracy to harm business
by unlawful means).
The Goal - Risk Minimisation
Given that we don't have a right to protest, there are no clear rules about
when protest is legal and when you can be sued. The game is
risk minimisation. Nothing that follows means that you won't get arrested, sued
or otherwise end up in legal problems. However, hopefully it will help minimise
the risk and help you exercise your right to protest. And again,
being litigation conscious can also make for better
activism.
Risk Assessment
The public relations disaster of the McLibel case probably took suing
political opponents off the agenda of large corporations with big market
profiles for over a decade. At the turn of the century the most likely people to
sue were developers with enough money to sue but all their assets/interests in a
particular project which is under political attack. Coastal developments have
something of a history of such litigation. However, with Gunns taking on 20
environmentalists and now David Jones suing The Australia Institute, it may be
that big companies with corporate images are again entering the game of
litigation against public participation.
The basic rule is that protesting against a company is a greater risk than
protesting against the government. Protesting which stops work or operations is
a greater risk than symbolic protests although the damages may not be huge. The
big damages are for things that impact on corporate reputations or markets.
Remember: fear of litigation silences more
people than actual litigation.
Protest Actions
If planning direct actions which may stop work or prevent others' activities:
- minimise the numbers of people publicly named as associated with the
protest
- ensure spokespeople (including police liaison) have no assets vulnerable
to being sued
- do not write plans down - if sued, such plans will become discoverable (ie.
they will need to be given to the other side)
- make no comment to police and do not admit to actions
- be careful how the action is advertised or communicated to the media
- it is an action to protect something or about an issue - not an
action to delay/cost/stop something
- "activists today entered X facility and our group said Y" rather
than "our group entered X facility" (no admission of trespass in the
first one - it is not bullet proof, but why make life easier from the
other side)
- keep focus on the political demand - not on costing the other side money
- if the goal is publicity, plan the action to minimise disruption to any
business
- if the goal is to disrupt, is it planned and time-limited or open ended
(and have you got enough people to do it - otherwise you might be better
with a symbolic action)
- if there is a high risk of litigation, design the action with the
elements of defences in mind so that you have grounds for running defences
Organisational Safety
Corporations often have complex structures with multiple entities to limit
liability should one particular operation/entity run into financial
difficulties. There is no reason why community organisations can not do the same
thing.
Organisational boundaries
Risk minimisation requires being clear about what actions an
organisation is planning and responsible for, and when actions are done by
people operating independently.
Sometimes in community groups people may be members of several organisations,
or just get involved in particular actions but not the organisation, or simply
work odd hours and do volunteer things for other similar organisations in
traditional work hours. While this is ordinary community politics, it can mean
that organisations are vulnerable to being associated with and sued for things
they were not part of but which people associated with the organisation may have
been involved in. Organisations should have clear policies and procedures to
authorise activity and identify it as their own, and similarly be able to show
that another action is not their action or was not authorised.
Records
If an organisation is sued, any records relevant to the case are
discoverable, that is, have to be handed to the other side. Where malice or the
organisation's intention is at issue, this could mean extensive discovery of
campaign plans, minutes, etc.
Some hints for record keeping:
- minutes should be kept to a minimum, just the decisions not the whole
discussion
- don't refer to campaigns by company names (eg. Nike campaign), but call
it by issue - preferably by the goal (eg. fair wages campaign) because when
minutes are discovered the use of company names can be used to show you were
targeting them maliciously
- be careful with wording in the minutes (eg. don't say "plan is to
embarrass X corporation and cost them money")
- record things in the minutes which would assist your case if you were
sued
eg. "strategy is to highlight the implications with X corporation's
policy/practices for animal/social/environmental welfare"
eg. strategy is for nonviolent protest, we will not interfer with operations
- don't record who moved motions etc (the law and organisations'
constitutions usually only require a record of what the meeting decided -
especially where decisions are made by consensus)
- keep documents securely stored, and make the suspicious looking person
taking all the personal notes take the minutes - that way you get to keep
their notes!
Spies
If someone is thinking of suing you, they will need information about who is
who and to collect evidence of planning etc. They may have all they need from
eye-witnesses or videos of action, or from your media release, or because you
have pleaded guilty to a criminal charge, but sometimes they may send someone to
your meetings etc. However, paranoia about spies probably does more damage to
groups and campaigns than any information actually passed on.
Rather than a witch-hunt, it is best to ensure that you are doing the risk
minimisation stuff as a matter of course - not as a cynical exercise. It should
be the way the group operates. Again, this will actually make for a more
campaign focused and efficient group.
Insurance Policies
Organisations can take out Officers and Directors insurance policies to
"protect" their officers if they sued. Some policies can also include the
organisation itself. Such policies can be useful both because they provide some
protection to activists, and perhaps more importantly, give them psychological
security to allow them to get on with campaigning. However, most policies do not
cover a number of things you may be get sued for - you can't really expect be
insured to break the law! Policies also don't cover aggravated and exemplary
damages, so you might still be liable for damages if you are sued and lose.
Insurance policies saves the stress of looking for lawyers if you are sued,
and the insurance company's lawyers will do useful work. However, they basically
represent the insurance company and will often look to settle cases - even where
that may be politically disastrous. If you do not act on the advice from your
insurance lawyers (eg. by continuing to campaign, or by not accepting a
settlement), you may lose the insurance cover.
The best approach is probably a pragmatic political one. Insurance is worth
it if the groups large/rich enough and if it makes everybody feel safer and
be more campaign focused, but it is not a panacea.
Lawyers
Because there is no right to protest in Australia, a lawyer will never be
able to tell you that you are perfectly safe doing a particular action. If they
do, they are either not doing their job, or they simply don't understand the
nature of litigation against public participation.
Don't look to lawyers to give you permission to do
an action or to assure you that won't get sued!
Ask lawyers specific questions:
- what might you get sued for?
- what are the elements of the suit?
- what defences are possible?
You can then design an action around that - using media releases etc to set
up evidence for a particular defence. For instance: if you frame an issue as
being about consumer advocacy, you have protection from secondary boycott
legislation under Trade Practices Act - so put consumer stuff in the
media release (again, not bullet proof, but it at least leaves open a defence
possibility).
Lawyers can also give advice around structuring your organisation. While
adoption of corporate type structures may be useful, beware that once you invite
lawyers into your governance structures, they will seek and advise on all sorts
of legal compliance issues, intellectual property, constitutional rules etc
which could tie up an organisation doing internal bureaucracy rather than
campaigning. Again, you need to be empowered and assertive around lawyers - they
provide services to you, they do not make decisions for you or run your
organisation or campaign!
Finally
Remember that risk minimisation makes for better
activism, but if it fails, remember that litigation
can be fun!
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