The Bush Lawyer's Guide to

Lead Cases to lean on for defending political activity

Defamation Commercial Torts Trade Practices Abuse of Process

A Guide for Political Activists by Dr Greg Ogle

Surviving Suits

A Guide for Political Activists

What you might get sued for

Avoiding defamation suits

Protest risk minimisation

Responding to legal threats

Lead Cases to lean on and have sport with

Further information sources

Law Reform

Sport! Having fun with litigation

Being a Bush Lawyer

Bush Lawyer Awards

Threatening Wallpaper

 

Bush Lawyer Cases & Politics

Beating a SLAPP suit: Animal Lib SA

Gunning for Change: The Need for Public Participation Law Reform

The Gunns Case: Chilling the Environment Movement

Bruce Donald summarises a number of cases of "Defamation Against Public Interest Debate"

Hindmarsh Island - early days

Approaching the Court

 

 

This website is authorised by Greg Ogle on behalf of Bush Lawyers Ink, a not for profit legal service brought to you by the legal system's inability to protect the community's right and ability to participate in public debate and protest.

 

Lead Cases to Lean On

A bush lawyer's guide to some of the most useful cases for activists and what they stand for. These are useful for understanding legal principles, or if you are being your own bush lawyer and defending yourself they can be thrown at judges or used in letters when having sport with opposing lawyers.

Defamation and Free Speech

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

This is the definitive case where the High Court confirmed that the Australian Constitution has an implied right of freedom speech, though lawyers and judges all around the country are still trying to work out what it means for defamation law (especially in relation to concepts of malice). Make of it what you will, and remember that it pre-dates the uniform defamation laws which came into effect in 2006. However, it is a clear starting point for political defamations.

Perhaps more importantly, the Lange judgement sets out a criteria for reasonableness in publication. This applies to media (and may not apply to activist groups), but in as much as it stipulates that media publishers should check facts and give someone commented about a chance to respond, it can be useful for arguing for a right of reply if you are defamed in the media.

Roberts v Bass [2002] HCA 57 (12 December 2002)

An important interpretation by the High Court of the Lange case and defamation principles. This case could have been more useful than Lange because it dealt with political activists rather than media corporations. Certainly the majority judgement is more liberal than some Supreme Court interpretations of Lange and of malice, but with 7 judges delivering 5 different verdicts, we are none the wiser on many points. Also, as the case about election leaflets, it is still not clear whether comment on many public interest issues (eg. legal cases, sewerage systems, major developments) is covered by the implied constitutional right to free speech. (See Conservation Council case below). Nonetheless, this is probably an advance for free speech and there is much to quote from the judgement of Justice Kirby in particular (though not from Callinan) to buttress free speech arguments.

Conservation Council of SA Inc & Ors v Chapman & Ors No. SCCIV-98-81 [2003] SASC 398 (9 December 2003)

The long awaited appeal from the Hindmarsh Island bridge defamation case (see "Why You Might Not Win" below). This Full Court judgement, while not great (The Conservation Council was still found liable on one claim) does give useful precedents in defence of free speech. Most notably, the trial judge's notion that if one was involved in a campaign, then that was evidence of malice was firmly quashed, as was the notion that all manner of other things (eg. the state of one's sewer systems) are relevant to the issue of malice. The issue is firmly centred on the intent and purpose of the publication complained of.

Also of use was the test of what constituted "reasonableness" in publishing for community groups. The test developed under Lange (see above) related to a major media organisation and required the person being commented be given a chance to reply. In this case, the Full Bench of the SA Supreme found that this was not relevant for an organisation like the Conservation Council in the context of a public debate where both sides had access to the media and were airing their views of the issue.

The bad news is that the Full Court adopted a fairly narrow view of what constituted "government and political mattters" under the Lange defence. Only the actions of the Executive arm of government seemed to qualify. The court found that free speech itself was not a government and political issue.

Protected actions

Levy v The State of Victoria & Ors unreported High Court of Australia 31 July 1997

A case arising from veteran Animal Liberation activist, Laurie Levy, participating in a duck rescue. Not a well known case, but it is important in that the Court found that physical actions (like participating in protest) was covered by the implied constitutional right to freedom of speech. This case was used successfully by Animal Lib SA to argue its right to produce and wear its T-shirt!

Defences - Necessity

Patricia Ellen Mark & Ors v Gordon Robert Henshaw [1998] 556 FCA (22 May 1998)

Necessity is a popular defence for activists in both criminal and civil cases because it allows a defendant to raise political issues at the trial. The defence is basically that the unlawful activity was necessary to avoid a greater harm - ie. whatever the political issue is which motivated the action. The problem is that it almost never succeeds! It is often struck out as simply being unarguable. In this case, the argument was that a raid on a battery hen shed was necessary because the activists believed that their were sick and injured birds there. The Animal Lib activists convinced the Magistrate, but not the ACT Appeal Court, nor the Federal Court. However, this final appeal judgement is useful to activists trying to avoid preliminary strike-outs of their defence of necessity. The Federal Court found that the defence was possible, and that it was a matter of the facts of the situations. (The "facts" went against the activists because they were found to be doing a media stunt!).

This case's insistence on deciding on the facts can be used to argue in other cases that such a defence is a matter for trial and should not be struck out pre-trial as being unarguable. This then sends a clear message to the other side that they will have a long trial involving the political issues, not a short one based only on their version of the unlawful acts.

Injunctions

Takhar & Anor v Animal Liberation SA Inc No. SCGRG-00-754 [2000] SASC 400 (24 November 2000)

A good case for beating injunctions (and celebrating on court steps!). Justice Lander ruled that an injunction stopping Animal Liberation from publishing a video of a raid on a battery hen shed could not be granted because Animal Lib had already published the video to the media (who would not be covered by the injunction).

Injunctions are designed to prevent damage, but given the publication to the media, any damage done by publication had already been done. In effect, the horse had bolted.

 

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 (15 November 2001)

Another case brought to us by Aunty and Animal Liberation. This one involved the media's right to publish video which it had not done anything illegal to obtain. The video may originally have been obtained illegally (as a result of an act of trespass), but the trespass was not by the ABC and the High Court found that the ABC therefore had a right to publish it.

Injunction busters take note: Takhar v Animal Lib said no injunction if the activist group had already published to the media, and Lenah Game Meats said the media has a right to publish material released by activist groups. So, when trying not to be injuncted, surprise and speed is of essence: get in quick and publish as widely as possible before the injunctions can be sought. Note however, that these cases only relate to defeating injunctions, both the activist groups and the media would still be liable for defamation published by them.

Abuse of Process

Williams & Ors v Spautz (1992) 174 CLR 509

Although this case is an appeal against a strike out of pleadings which were viewed as an abuse of process, it is useful for activist lawyers in response to SLAPP suits because it is recognises the tort of abuse of process in Australian law. The tort is pretty limited as it requires that a case be brought for a purpose beyond the scope of the tort. However, this case was important because it established that the test of whether it was an abuse was whether the predominant purpose in bringing the action was improper. This is still hard to prove but better than the previous test of whether there was any legitimate purpose in bringing a case. Technical stuff, but very useful for bringing counterclaims! In Takhar v Animal Liberation, Animal Lib claimed that a suit against them was a SLAPP suit designed to silence them rather than to repair damage of trespass, restore justice etc. As such it was a tortious abuse of process. Still difficult to prove, but the Spautz case was useful in successfully defending the counterclaim for abuse of process against a strike out application.

Why you might not win

CHAPMAN & ORS v CONSERVATION COUNCIL OF SA & ORS No. SCCIV-98-81 [2002] SASC 4 (21 January 2002)

While the Conservation Council won 15 out of the original 18 claims against it in this case, the judgement against the Council stands as a sobering warning of what the judiciary can make of ordinary political activism: conspiracy, underground organisations, malice and incorrect sewer systems. Following my own advice re quoting other people (see Avoiding Defemation Suits!), for more information on this case see Mark Parnell's article, or the discussion on ABC Radio National's The Public Interest Program and The Australian's Editorial (both reproduced on the Conservation Council website).

The judgement was appealled, and in December 2003 the Full Bench of the SA Supreme Court overturned Justice Williams findings on malice, and found for the Conservation Council in two of the remaining three claims. While this provides some relief from Justice Williams-Vale's view of the world, the fact remains that the Full Court still found the Conservation Council liable to the tune of $50,000 despite finding that they acted with no malice. Click here for the Full Court's judgement.

And if all this leaves you confused, or you still don't know why you might not win, then check out the High Court judgement of Justice Callinan in Roberts v Bass.
 

Remember the bush lawyer's golden rule

Be careful, not silent

Note: This website is inactive and not being maintained. You are welcome to whatever is useful, but no guarantees that it is up to date.