ISABELLE REINECKE. How strategic litigation can strengthen our democracyApr 30, 2019
Australian politics is becoming increasingly polarised. Policy decisions are made for short term political gain against the advice of experts, and democratic checks and balances are being degraded. Strategic litigation is a tool that can be used to cut through the politics and surface the facts – even for causes that vested interests with deep pockets are stacked against. But litigation is costly. A new organisation, Grata Fund, is working with philanthropy and crowdfunding to provide financial assistance to help private citizens push back against unfair laws and policies through the courts.
If you asked a person on the street to name a legal case that has shaped Australia and significantly shifted policy some would scratch their heads, and those that answered would probably say, ‘Mabo’. And they’d be right.
The Mabo case reveals the crucial role of the courts in Australian democracy and their ability to cut through the politics of inertia and push us forward towards policy and cultural understandings underpinned by facts.
As many readers of this blog will know, in Mabo the Court was asked to examine the notion of terra nullius, ‘no one’s land’, a concept that was used to justify the occupation of Indigenous Peoples’ lands since 1788. After studying the facts provided to the court and listening to the legal arguments, the High Court found that terra nullius did not hold water and ruled that Eddie Koiki Mabo and the Meriam people were ‘entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands’ in the Torres Strait
Today, Australians broadly accept that terra nullius was a lie. However, the potential of Mabo and the subsequent Wik decision to create concrete changes in the lives of Indigenous Peoples was severely curtailed by the Howard Government’s 10 Point Plan, which continues to play out today in the fight between Wangan and Jagalingou traditional owners and Adani’s Carmichael Mine. Nonetheless, the cases demonstrate the court’s unique ability to operate in a world of facts, even when dealing with the most politically contentious issues.
In Mabo, Wik and Timber Creek earlier this year – where the High Court found that Ngaliwurru and Nungali peoples are entitled to $1.3 million in compensation for spiritual loss and $2.5 million for the extinguishment of native title – judges have risen above the fray of politics, vested interests and spin, relying on facts and law, free from political pressure.
Courts are the essential third arm of our democracy. In that role, they are the backstop to abuse of power by governments and corporate leaders. They make reasoned and transparent decisions based on actual facts, not those distorted by politics. In an age of fake news and alternative facts, the core machinery of at least one arm of our democracy operating on this basis pushes us forward.
Earlier this year the Eastern Arrernte Indigenous community in remote Santa Teresa, 80 kilometres out of Alice Springs, won a historic decision for housing rights – an incredibly complex and intractable issue.
For years the Territory Government had failed to attend to over 600 urgent repairs to the housing for which it is responsible. Many houses posed serious health and safety risks to residents, with some structurally unsound, without running water, or functioning sewage and ventilation, despite temperatures regularly hovering above 40 degrees in summer and below zero degrees in winter. The direct and indirect impact of poor housing conditions on the health and wellbeing of Aboriginal people is well documented and is considered by the Australian Human Rights Commission to be a central factor undermining efforts to close the gap in health, education and employment outcomes for Indigenous people.
The community in Santa Teresa had serious and legitimate concerns about housing conditions and the Territory Government’s responsibility to adhere to the Residential Tenancies Act, but the hard cost of bringing a matter like this was a serious barrier for the community, notwithstanding the support of their pro bono legal team Australian Lawyers for Remote Aboriginal Rights. Grata Fund, the small organisation I founded in 2016 to address these financial challenges to strategic litigation, was able to lend support to the community through funding disbursements so they could bring the case.
The issue was so divisive that the Territory Government aggressively countersued the community’s residents in response – originally seeking up to $2 million in alleged rental debts across the impoverished community. After years of legal threats from the Government, the Tribunal dismissed their counter-claim during the trial after the Government failed to provide even the most basic evidence to support its suit.
Following the hearings, the Northern Territory Civil and Administrative Tribunal found for the first time that the Territory Government is obliged to act in accordance with the Residential Tenancies Act, had failed to do so and has the same legal obligations as any other landlord to ensure remote housing is ‘habitable’ and in ‘good repair’.
This historic decision sets an important precedent for Government and policy makers. It should force a radical transformation in the way the Government engages with remote Indigenous housing – contributing to a shift away from aggressive neglect towards better outcomes for remote Indigenous people.
But, we can’t forget what was learnt from the pushback to Mabo and Wik by vested interests. Any legal strategy must work in tandem with affected communities and broader social movements that can hold politicians to account on decisions based on fact and public interest. Without integrated advocacy strategies, we will be perpetually waltzing two steps forward one step back and, frankly, communities fighting for their rights need to be moving two steps forward each time. That’s why Grata Fund is now working with and for the community, peak Aboriginal groups and Australian Lawyers for Remote Aboriginal Housing to help them capitalise of the potential of the decision.
The Mabo and Wik cases have shaped the way the Government engages with Indigenous Peoples’ land rights and White Australia’s understanding of our colonial history and contemporary truths. Timber Creek, where the High Court upheld millions of dollars in compensation for the native title extinguishment of the Ngaliwarru and Nungali peoples’ lands and ensuing spiritual loss, will do the same. And yet, this avenue for democratic challenge to government has not found its way into the established practice of public interest civil society strategies, or even more broadly Australian cultural conceptions of democracy. Cases like Santa Teresa are few and far between.
One of the biggest barriers preventing Australians from accessing this part of their democracy is a procedural quirk of the Australian legal system. Unfortunately for our democracy, Australia has the most prohibitive cost system in the world for citizens seeking to access the courts for cases in the public interest.
In Australia, if you want to access the courts and the rights provided by our Constitution and legislation, you must be willing to stump up potentially hundreds of thousands of dollars in government legal bills if you lose. That means there have been decades of legally and constitutionally problematic policies, decisions and legislation introduced across multiple Governments that have gone unscrutinised by courts. Legislation like the Border Force Act that threatened doctors with two years in prison for speaking out about abuse in offshore detention, which was not challenged as unconstitutional until Grata Fund stepped in to protect Doctors4Refugees, ably represented pro bono by Fitzroy Legal Service, from the cost risk.
This prohibitive cost regime means the courts are out of reach for ordinary people wanting to challenge legislation, and is another way that vested interests are given unfair advantages in our democracy. Just before Christmas last year, the Wangan and Jagalingou traditional owners seeking access to the court to challenge Adani’s Carmichael mine on native title grounds were ordered to pay $50,000 surety within a month, or face a guillotine order to prevent their case from being heard. Grata Fund was able to work with philanthropists to raise the money required and pay it into the court, with just hours to spare on the deadline. It shouldn’t have to be this hard.
Not only does Australia’s cost system mean the courts are unequally open, in our system it also means the consequences of litigation are unequally burdensome. Unlike ordinary Australians, corporations that are saddled with adverse cost orders at the end of proceedings are able to simply write those costs off as a company tax deduction. If Adani lose this latest court case, the net impact of adverse costs on their bottom will likely be zero.
Around the world – from Canada, to India, to Germany and the UK – ordinary people bringing cases in the public interest are protected from this overwhelming financial risk. Without this protection in Australia, we know that winnable cases aren’t making it to the bright lights of the courtroom. It’s fair to say that right now, many Australian communities are forced to abandon cases of great public interest, strategic value and significance to their lives, simply because the cost barriers prevent them from holding Government and corporate leaders to account.
Strategic litigation is a tool of democracy and it can be used to strengthen democracy. Grata Fund is taking on the strategic litigation gap in Australia’s democracy by developing and financing cost risk in circuit breaking cases to help shape the society we want to live in – one that respects and upholds human rights and democracy.
By reducing the financial burden for communities like Santa Teresa to access the courts and by working to change barriers like Australia’s adverse cost rules, we can increase people’s access to the courts and ensure that their democratic role is utilised.
Just think, if that person on the street who, scratching their head, thought of Mabo also knew about the broader power of their court system, perhaps even the most toxic and entrenched political problems like climate change, racial justice and gender equality might not seem so stacked against them after all.
Isabelle Reinecke is the Founder and Executive Director of Grata Fund. Grata empowers Australians to create extraordinary change by removing the enormous financial barriers to court and by integrating litigation with strategic movement-driven campaigns on the issues of human rights, democracy and climate change. By pushing back against unfair laws and policies through the courts, our movement is relieving hardship for millions of Australians.