24 October 1998, Sydney
The Kumarangk Legal Defence Fund Incorporated is principally concerned with a series of defamation cases brought by marina developers Tom, Wendy and/or Andrew Chapman against a number of people and organisations opposed to the building of a bridge to Hindmarsh Island. These cases are:
There have also been a number of actions against mainstream media organisations:
This last case against your ABC is by far the largest involving some 22 separate allegations of defamation from 1992 to 1997.
However, it is the cases brought against community organisations and individuals which are our principal concern, although I also want to discuss today other actions which form part of the history of this campaign. I do not want to take you through the tortuous legal and political history of the Hindmarsh Island Bridge issue. Suffice to say that Hindmarsh Island (Kumarangk) lies at the mouth of the Murray River some 90 kms from Adelaide. In the late 1980s the South Australian State government made further development of the Marina Goolwa on Hindmarsh Island (a marina owned by the Chapman family company Binalong Pty Ltd), contingent on the building of a bridge to the island. For a range of environmental reasons and for reasons to do with issues of Ngarrindjeri heritage, a number of people and groups opposed the plan to build a bridge. Today I want to focus on that opposition to the bridge, and on the impact on that opposition of a range of legal happenings.
But before telling that story, I want to make a number of preliminary points. Firstly, I am not a lawyer and neither are any of the members of the KLDF. Thus our perspective is one of ordinary activists who have been forced to address and learn very quickly a range of legal issues which were quite foreign to most of us. Secondly, I want to point out that the KLDF is not part of the campaign against the Hindmarsh Island bridge: it has been established solely to support those being sued in connection with that campaign. We welcome support from those who are undecided or in favour of the bridge, but who are concerned about the impact of the litigation against individuals, community groups and the media.
Indeed, for us that is the crux of the matter. We are concerned at the way the slow, painful and often impenetrable working of the legal system can impact upon community campaigns and the community's ability to speak about environmental issues and issues of public interest.
The story I want to tell begins then not with the bridge, not with the marina, not with the settlement and 'development' of Hindmarsh Island, nor with the Ngarrindjeri whose story begins there long before the system of law I am talking about was a twinkling in Mr Blackstone's eye. Rather the story I am telling begins, admittedly somewhat out of context, in 1990. In 1990 opposition to the Hindmarsh Island bridge was mounting, with local residents forming a loose group to oppose the bridge. In February 1993 this loose grouping became the Friends of Hindmarsh Island.
By late October of that year initial work on the bridge had commenced, and so came the first community picket . In the meantime, the 'Friends of Hindmarsh Island' name was registered - apparently by the pro-bridge landowners - not the anti-bridge community group who had been using the name. The anti-bridgers were then threatened with legal action if they continued to use their original name.
In view of this, the anti-bridge community decided upon a more appropriate name, the 'Friends of Goolwa and Kumarangk'. This time they incorporated it, but it was the first inkling for many that campaigning against the bridge could be a legally complicated business. It was not the last such experience.
In March 1994, Binalong and its associated company, Marina Services Co, filed an application in the Federal Court, against two officers of the Conservation Council, three officers of the Friends of Goolwa and Kumarangk, and two officials of the Construction, Forestry, Mining and Energy Union (CFMEU), claiming damages for breach of section 45D of the Trade Practices Act, and for the common law tort of interference with contractual relations.
In addition, the developers sought interim injunctions stopping the respondents from hindering or preventing provision of banking services by Westpac to the developer, or similarly hindering or preventing the Minister of Transport or her contractor, Built Environs, from constructing the bridge. Seven orders were sought, going beyond those aimed at Westpac and the Minister of Transport, to include preventing any action to induce the Minister to breach her contractual obligations with the developers.(1)
Two weeks before the injunctions were ordered officers of the Conservation Council and the Friends of Goolwa and Kumarangk had been quoted in the media criticising the state government for its handling of environmental issues, including Hindmarsh Island. A rally on 24 March 1994 had also delivered a letter to the Westpac state office, from the Conservation Council, asking Westpac as the marina financier not to litigate over the bridge issue - the State Government had claimed (and still does) that they were only proceeding with the bridge because of their fear of litigation from the bank, amongst others, if they did not honour the contracts signed by the previous Labor government.
Two weeks later, all injunctions against the Conservation Council were dissolved, but the injunction restraining the CFMEU and the "Friends" and named officials or their servants, from hindering and preventing or attempting to hinder or prevent the construction of the bridge remained in force. The injunction relating to Westpac was discharged.
It is worth noting the inflammatory and misleading role of the media at this point. On 20 April, The Advertiser headlined 'Bridge protesters to be sued', and reported that the court orders "forbid...anything which could hinder or stop the construction of the $6.4m bridge linking Goolwa and Hindmarsh Island. This includes picketing the Goolwa worksite, making public statements to the media or lobbying parties involved with the project.".(1)
David Bamford of the Flinders University School of Law, writes that "...the injunctions certainly did not go so far as [to] forbid anything which could hinder or stop the construction of the bridge. It did not, in my opinion, forbid picketing in the strict sense of the word, and certainly did not forbid public statements to the media or lobbying the parties involved with the project. Yet this was the public perception at the time. Members believed they could not write to their MP, or make public statements of any sort. I suggest the emphasis of legal advice should be as much on what can be done as there is on what is forbidden."(2)
On 16 April 94 Colin James, the Chief Reporter at The Advertiser, wrote "...Overnight, vital sources of information dried up."
Meanwhile, the Friends had received a demand from the developer's lawyers for the Friends' membership list. This request was refused. There was considerable consternation amongst the members of the Friends over the injunctions issue. There was more consternation over media reports of the developers photographing picket lines and videotaping a rally,(3) and especially over a report of photographing of people leaving a private house after a meeting of the Friends.(4)
Shortly after that, on 22 April, 35 locals were hand delivered a letter from the developer's lawyers, which claimed that the people being served were responsible for the developer's problems and that they could be sued for debts and lost profit, $47m in all.
Dr David Shearman recalls, "This produced anxiety and even terror in many ordinary members of the community who feared the loss of their houses and assets. All these individuals were deeply concerned with their local environment and the future. ... Some in their eighties have been reduced to sleepless nights by these letters. Others developed anxiety states."(5)
It was the fear of litigation which had the impact here, and the first of the defamation cases we are concerned with was still 3 years away.
But it was not just fear of litigation which raised activist uncertainty. There were reports in the local media that the Chapmans had asked the Police to investigate an alleged "conspiracy to defraud" perpetrated by anti-bridge campaigners,(6) and later demanded the prosecution of those circulating a pledge to protest/blockade any construction work.(7)
On 25 June 1997, The Advertiser reported Wendy Chapman's criticism of Democrat Senator, Natasha Stott Despoja for her supposed involvement in the production of the newsletter of the Kumarangk Coalition. The complaint led to an investigation by the Administrative Services Minister, and was dismissed.
In August 1997, in response to the first couple of defamation cases, the Kumarangk Coalition organised a 'Forum on Understanding Defamation Law'. They invited four local Adelaide legal people to offer their perspectives on the role of the law in matters of protest and free speech. Whilst most of the small Sunday afternoon audience was made up of people opposed to the Hindmarsh Island Bridge, there was at least one person (not one of the Chapmans) in attendance who took a contrary view. This person seems to have taken particular offence at the contribution of Mark Parnell, a Flinders University law lecturer, long time conservation campaigner and part time solicitor with the Environmental Defenders Office in South Australia.
This person subsequently lodged two formal complaints against Mark Parnell, first with the Commonwealth Attorney-General over alleged (mis)use of Commonwealth funds and secondly, with the SA Legal Practitioners Conduct Board for the heinous crimes of 'inciting known trouble-makers to break the law' and advising protest organisers to encourage large crowds at demonstrations! Both complaints were dismissed.
Most recently, the Kumarangk Legal Defence Fund Inc.'s web site was closed down after a complaint received by the Internet Service Provider claiming that they would be liable for alleged defamatory material - this time about the defamation cases themselves. No commercial ISP is going to be interested in whether or not the defamation claim is arguable, it is much safer for them to drop the site. We are pleased to say that the KLDF website has just been re-established at another address (http:///www.green.net.au/hindmarsh). You can form your own opinion on its content, but one letter of complaint led to about 3-5 days of activist work in three or four cities.
Throughout the years of the campaign against the bridge, the Conservation Council and others had received the occasional correspondence from the Chapman's lawyers, regarding comment made, requesting retractions and apologies, and warning of the potential for defamation litigation. Many hard hours were spent, labouring over how to respond not only legally, but politically and strategically for the campaign itself. The effect of this on successive boards, campaigners and staff has been to slowly build an organisational 'tumour' of fear. The effect of the 'worst-case scenario impending-crisis' approach, was a self imposed silence.
In this continuing climate of fear and suspicion over the past four years, active campaign networks have moved 'underground'. When the Kumarangk Coalition received an award from the Reconciliation Council for the 'Long Walk' (an event many people were proud to have organised, involving hundreds of people walking in support of the Ngarrindjeri people, along the 80km route from Adelaide city to Goolwa), nobody wanted to publicly accept the Award!
The Conservation Council has not made official comment on the bridge issue for years now. That has been left to others, because the Conservation Council needs to protect itself for other campaigns now and in the future.
Nonetheless, on 5 November last year the Conservation Council and others were served papers suing for defamation regarding a leaflet produced and distributed three and a half years earlier. On 16 February this year, the Conservation Council was again served with documents, this time for a Supreme Court defamation action, with 17 separate allegations, based on material said or published from 1994 to 1997. Also served were three of CCSA officers (Bolster, Shearman and Owen). This is a much bigger case. The defence has just been prepared by a combination of activists and lawyers and they have successfully had 5 of the 17 sections struck out by the Supreme Court.
But for around three months the status of the Conservation Council's legal representation regarding the Supreme Court case was very unclear. They found themselves making their first appearance in the Supreme Court without legal representation - quickly learning how to 'file appearances' and how to draft a defence! When we can finally stomach embarking on our law degree, a few of us will expect accreditation for defamation law!
The Conservation Council now has two different legal firms acting, one for each of the two cases.
Throughout there was the hard task for us non-lawyers, of not only interpreting the barrage of legalese, but working out what questions to ask, having the courage to ask 'please explain' time and time again. Then came the slow dawning shock as we all came to understand the vagaries of defamation law, which can lead to having to prepare a defence based not on what you meant when you said something, but on what others could have taken it to mean - and as a result having to dredge up mountains of documents to see if you can argue the defence of fair comment or qualified privilege for a meaning that you never had in mind at the time. (Truth is not a very useful defence in defamation law!)
Some people have suggested "doing a McLibel'- that is, going public, repeating the alleged defamations and making the court case a publicity stunt. For a peak body like the Conservation Council which must have in mind the best long term interests of the organisation and the environment movement as a whole, such risky courses of action have been considered reckless. Of course, the situation and practical constraints are different for other groups and individuals, but none have taken this course thus far.
Ultimately though, it is the fear and lack of knowledge of litigation, that makes it impossible to talk sensibly about the legal actions, or to plan campaigns coherently. This was a contributing reason for setting up the KLDF as a separate body to do the legal stuff. The legal planning had to be done properly, and campaigners were happy to remove the cancer of legal discussion from the campaign meetings. This has been a particularly important strategic move. The KLDF also attempts to overcome the isolation of "individuals before the law" by morally and politically supporting the defendants and facilitating information flows between defendants so they are strengthened by the collective efforts. As an example, some of the evidence that the Conservation Council now depends on for its defence was made easily available from the Chapman's own media monitoring which was listed in claims from other cases.
And there have been some joys amongst these 'trials'. Earlier this year
the Conservation Council successfully had the first defamation case against
them struck out. But it remains in force for the other defendants at this
stage. However, the plaintiffs have appealed that decision in the Supreme
Court, and we await the result of that appeal.
I stress here that this story of green groups being sued here is but one part of a much bigger picture. As noted earlier, a number of media outlets are also being sued. Disappointingly from our point of view, some have already settled out of court. More importantly, there is amazing stress and trauma for the individuals being sued who are torn between their principles, the needs of their stressed families and the prospects for their bank accounts. And for the Ngarrindjeri people opposing the bridge, the fact that their supporters are being sued can only add to their suspicion of and hostility to white law.
The issues are also not limited to defamation. There are complex legal arguments as to whether the members of an unincorporated organisation (ie: the Kumarangk Coalition) can be sued and who is liable for actions taken in the name of the group. It has been particularly difficult to get an answer to the last question, and related issues are now on appeal. But I suspect that question has far-reaching implications for all community groups. As an aside, I would note that, contrary to the usual legal opinion, thus far the unincorporated bodies have fared better than the incorporated bodies.
Apart from the inevitable questions from various people and groups in the campaign as to whether the litigation will directly affect them, there is the inevitable question: 'what can we do to help?'. That is partly what the 'Kumarangk Legal Defence Fund Inc' is about and we have been encouraged by the level of support we have received.
But at the back of our minds, in the corners not cluttered by the particulars of innuendo or the pleadings of the first, second and fourth defendants to paragraph something or other, in the back of our minds is the bigger picture: the questions raised about the nature of our legal system and of political discussion in Australia. It is surely the Government's role as the representatives of the people, to make sure that the laws and legal processes do not in effect curtail legitimate public comment and action.
Short of this, there are roles for others. Peak community organisations like the Conservation Council must inform and represent the community of environmental concern, but they must also inform the environment movement.
The Environmental Defenders Offices also have a role. As the community's environmental law resource - they are charged with informing and empowering us. In part I am glad to see publications like the activists rights handbook addressing issues of civil litigation. I am glad because knowledge is power. But having seen the impact of the fear of possible litigation I sometimes wonder whether such public information doesn't just contribute to the impression that there is a big, bad, and no matter how good the EDO's information, a still incomprehensible legal system out there waiting to trap us. Mostly I think the former because I believe we can be smart and continue to act in spite of possible civil litigation, but it is a question worth thinking about.
But I want to finish on a brighter note. Despite the adversity encountered in the campaign and the stress, fear and buckets of time wasted on legal matters, there are bright sides. Conservationists forged unbreakable links with the Ngarrindjeri people, the union movement, social justice groups, other environment groups and churches, and have drawn immense support from the wider community. The knowledge of the law, the media, corporate business and campaign dynamics is incomparable to that of six years ago. The campaign is well documented so as to pass on that knowledge.
While the litigation has disrupted some sections of the movement, others have grown stronger and harder - learning how to speak out still. Some still hope to turn these defamation cases to political advantage; challenging in evidence and proving in court that much that has become accepted 'truth' about the Hindmarsh Island Affair is in fact false. It is a possibility, but time is short. The bridge construction can start at any time now. However, community opposition to the bridge remains strong, the determination is immense and the cases against bridge opponents have served to cement that resolve.
1 Bamford, D; 'Hindmarsh Island - some lessons' paper given at the Defending the Environment Conference by the Australian Centre for Environmental Law, Adelaide, May 1995. p 4.
2 Cited by Bamford, p 6.
3 Bamford, p 9 - 10.
4 See for instance, The Advertiser, 27 April, 1994.
5 See for instance, The Advertiser, 20 April, 1994.
6 'President's Message', Environment South Australia, September/October 1994.
7 Southern Argus, 1 August 1996. The Times, (Victor Harbour), 9 August 1996.
8 The Advertiser, 13 May, 1997.