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
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
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.
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.
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  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
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
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).
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
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
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
Why you might not win
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
Parnell's article, or the
on ABC Radio National's The Public Interest Program and The Australian's
(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.