Hi, I’m Greg and I want to grumble about SLAPP suits. SLAPP stands for Strategic Litigation Against Public Participation. The name is American, but unfortunately law suits against activists voicing community concern are alive and well in Australia.
Perhaps the most famous Australian example was the Gunns 20 case where the Tasmanian timber giant Gunns sued Bob Brown, The Wilderness Society and 18 others over protests against logging old growth forests. The case dragged on for five years before it finally collapsed with Gunns having trashed their own reputation and paid over a million dollars in court costs.
But there have been other cases. In South Australia environmentalists got sued for saying a developer was chasing “fool’s gold”, and for saying that you would have to have “rocks in your head” if you wanted to build a housing estate in a particular place. And then there were the animal activists sued over a T-shirt about battery hens, and the social justice activists sued for saying that there had not been adequate consultation with Aboriginal people over a particular project.
I grumble about this because I spent 10 years of my life defending these cases, but I was a lot more than grumbling last week when I heard that the Victorian Supreme Court had just slapped injunctions on protesters who had been blocking the building of a new McDonald’s at Tecoma in the hills outside of Melbourne. Now I don’t know the protesters, or whether their concerns about local businesses, culture and environment, healthy diets, or the rights of the local community are widely held or well-founded, but I do know that they have a right to effectively protest the burger-isation of their town. Such political issues should be sorted out in public debate, not by a court process where a global corporation has all the resources and rights.
But what is even more outrageous in this case was that the judge made a “representative order” – effectively gagging whole groups of protesters who were not even parties to the case. So, if you were one of those protesters upset by this particular Hamburglar and you now go to protest by symbolically occupying the site for say 10 minutes, you might not only be charged with trespass by the Police, you could be sued for tens of thousands of dollars and be guilty of contempt of court to boot!
I blame McDonald’s, and I blame the judge and the lawyers, and I blame the legal system that makes court cases so expensive and stressful. But mostly I want to see legislation to ban such attacks on the right to protest, and no, I won’t have fries with that!
I am Greg, and I am grumbling.
This Grumble can be heard online or by podcast at https://radio.adelaide.edu.au/gregs-grumbles-10/
First Broadcast: 8 October 2013
Greg's Grumbles can be heard on Radio Adelaide during SACOSS' Small Change program - 6pm every Tuesday night. 101.5FM or online.
Law is for the rich, generally protects power & property - but useful precedents do emerge. Remember McLibel? Wikipedia records The original case lasted ten years, making it the longest-running case in English history.[1] McDonald's announced that it did not plan to collect the £40,000 that it was awarded by the courts.[2] Following the decision, the European Court of Human Rights (ECHR) ruled in Steel & Morris v United Kingdom that the pair had been denied a fair trial, in breach of Article 6 of the European Convention on Human Rights (right to a fair trial) and that their conduct should have been protected by Article 10 of the Convention (right to freedom of expression). The court awarded a judgment of £57,000 against the UK government.[3]
ReplyDeleteThanks for the story Greg.
ReplyDeleteHere in Tecoma we expected the SLAPP orders but were pretty shocked that McDonald's were permitted to make them representative of the wider community. We had over 3,000 people march through Tecoma and down a driveway which is partly on the McDonald's property shortly afterwards, including children, MPs and councillors. All were there to protest and all technically therefore covered by the representative group B (tresspassers).
There have been other, hopefully unintended consequences, of the SLAPP order. Local parents used the carpark on what is now McDonald's land, as well as carparks on the adjoining land on each side, when picking up their children from school. Patrons of local businesses also used those carparks and the easements, which are in favour of the council and have provided a public right of way for several decades. The court order however has allowed McDonald's hired security to block off access across their land, including these easements and the shared driveway, and physically prevent even pedestrians passing. All of the businesses directly affected are suffering financial loss as a consequence.
Local residents have been intimidated, threatened and on some occasions actually manhandled by the security guards. They regularly try to bait and instigate conflict with the protesters. Security regularly tear signs out of the hands of protesters and throw them over the hoardings. As the majority of those who are there every day for long periods are retired residents who are 'holding the line' whilst others attend to work and their families, this intimidation is having a very real affect on their emotional health.
Even those who are not protesting but simply going about their business have had run ins. One elderly lady had her mobile phone grabbed from her when she'd tried to call her husband for help, because a security guard was shoving a camera in her face to film her presence and she was terrified. Her crime? Waiting on a friend to go to church together.
There have been more severe cases that are now being dealt with as assaults by the police. One recent case had a father punched in the face by security when he tried to access a nearby restaurant on foot because the driveway was blocked by McDonald's security. He had his young teenage daughter with him at the time and she witnessed the incident.
Females who've attempted to visit the local stores after dark or pass along the easement have found themselves surrounded by rings of security guards who then block their way and quiz them about their presence. As someone whom this has happened to, it's a terrifying experience.
I guess what I'm trying to say is we're frustrated.
There are those who have said that the protesters deserve what they get because they're interfering with a legitimate business and broke the law when trespassing.
For those few people who 'broke the law' their are hundreds of others who haven't done so or have any intention of doing so. I am one of them. Yet, because I took part in a community march that went down an easement, I could be immediately thrown in jail for contempt should I even consider stepping across a spray painted red line.
Tecoma and the wider Dandenong Ranges community has been let down by a system which prevents health & community aspirations being taken into account in planning. A system that allows developers with lots of money to take a planning application out of the hands of the local council, and place it into the hands of the legal system; this is what appealing to VCAT does.
ReplyDeleteA system with the only means of appeal being via the Victorian Supreme Court, which our council were told would cost them over $1.5m dollars and which they could be almost guaranteed that the outcome would simply have been to refer the case back to VCAT to ask them to review it. A system that allows a developer to take the local community to that very same Victorian Supreme Court with less than a day's notice to arrange legal council - and not only once!
The same process was repeated when McDonald's attempted to add a 9th protester to the court order. He had under 18 hours to obtain legal counsel being served after 5pm the evening before the court date. Yet the developer has a team of 8, including a QC and barrister, the rest simply to take notes. The court then granted an injunction in favour of the developer without even hearing a single word from the community.
Now McDonald’s may no longer be pursuing us for loss of profits, but they are still seeking a permanent injunction against the community AND their own costs for their huge Norton Rose legal team. Should be pretty cheap then huh?
Yet this very same system allows McDonald's building contractors to ignore the permits granted re: working hours because all they get is a small fine. It allows them to pump flood water from the construction site directly into the storm drains, which flow to our local creeks. It ignores their security trespassing on private land, whilst they prevent the local residents using an easement that they've always used. The court says McDonald's have a right to the use and enjoyment of their land and that the protesters are preventing that, yet it allows McDonald's security to far more effectively block those rights & access for surrounding land holders.
Yep, frustrated about sums it up!
Last thing I wanted to add is that when deciding to extend the injunction at the last court date, the judge claimed that we were an 'organised campaign', with leaders that should be held responsible and that we've been 'actively recruiting'. The evidence for this is apparently our successful social media, international PR campaign and the fact that even though he’s ordered groups of people to remain away from the site there are always more willing to take their place.
DeleteOur campaign truly is community based. Yep, we’re organised. We have enough community meetings so we should be!
The Dandenong Ranges also has a very long, and high, volunteer rate. Many of those volunteers being active in environmental, landcare or social community based activities on a regular basis. We are dedicated, determined and know that actions speak louder than words. Most of all, we are incredibly proud and protective of our chosen home and rightly so.
So, we do not need to recruit. Why would we when over 90% of the adult Tecoma population actually signed their names to an audited parliamentary petition against the proposed McDonald’s?
Or when McDonald’s are doing such a good job with their bad PR from this whole fiasco, that people across the world come to us and say ‘tell me what I can do to help’.
Thanks again for the article