The Bush Lawyer’s Guide To Surviving Litigation Against Public Participation
Greg Ogle Interviewed by Claudette Vaughan

Telling it like it is, Victoria’s bush lawyer Greg Ogle speaks with the Abolitionist on a number of law cases he has, and is, dealing with including the contemptuous Gunns Ltd law case currently before the Court.

Abolitionist: What is the definition of a “Bush Lawyer?”

Somebody who isn’t legally trained but has opinions on the legal system and does work on legal issues.

You have described yourself as a professional greenie, itinerant academic and bush lawyer (unpaid labour and SLAPP suits a specialty). What is your interest in the law?

My day job is as legal co-coordinator for the Wilderness Society and I was employed by them after they were sued by Gunns Ltd, the Tasmanian wood-chip company. The reason I got that job was because I have a habit of being in organisations that get sued as a result of political campaigns! I was involved in an organisation in South Australia that was sued over the Hindmarsh Island Bridge, there was approximately 15 odd defamation cases that occurred there.

I have supported and represented Animal Liberation South Australia after an expose of a battery hen establishment. Because I had some history of being sued and I knew my way around the courts a bit, when the Wilderness Society got sued they transferred me to this job from my South Australian campaign job.

What is your view of the law? I take it you have a poor opinion of it.

It’s an incredibly frustrating system to deal with because it’s so elitist, it’s not transparent and at the end of the day it rewards power and money. It’s simply not a fair or a just system.

You set up your website to help activists facing defamation suits. Why did you think there’s a need to do this? Were grassroots activists being rail roaded?

I set up the website in response to what I would have liked to have known when the Hindmarsh Island Bridge cases got started. We were starting from scratch so we didn’t know what to make of the system. On the way we learnt a whole lot. How you can present yourself, how to phrase things for greater safety and how to minimize the risk of being sued in the first place. The original motivation was just to share the things we learnt being a victim of these law suits. The need for that came from the sheer number of cases that we began to hear about.

Currently there’s a list of Australian SLAPP suits on the Source Watch website. There’s approximately 60 lawsuits from 20-30 examples where lawyers have threatened community activists over activities they have engaged in and that’s just the tip of the iceberg. It’s a widespread problem so I was keen just to share my experience with the things that we have learnt.

For people who haven’t come across the term “SLAPP suit’ will you briefly go into that please Greg?

SLAPP stands for Strategic Litigation Against Public Participation. It has various definitions but basically it’s a lawsuit around a political issue which could have the effect of silencing people or restraining public debate and political protest around the issue. For me it’s that effect on public debate is crucial to defining something as a SLAPP suit.

Since you have been raising awareness on SLAPP suits which is very useful for Australian activists, how does one get rid of a SLAPP suit once it’s been put on? Can you appeal it?

There’s a major problem in Australia in that we don’t have a wide-ranging freedom of speech constitutionally so there’s no simple way of dealing with the suits. Many end up dragging on for years and years. One of the things that we’ve been looking at is campaigning for legislation to protect public participation. The mechanism there would be to create a right of public participation and a mechanism by which if you are the victim of one of these suits you can simply go to the courts and say, “What I was doing was an act of public participation” and the law suit should be dismissed. If you could do that at the first stage there would actually be a quick way of dealing with the issue.

How does a political activist in Australia fare? Does there exist in the jurisprudence system a hierarchy of “worst” dissenters down to low-level dissenters? How would an aboriginal dissenter fare in todays political climate especially now with Mulrungi Doomadgee’s prime suspect being acquitted of all charges against him. All Muslims have got to be up there on the higher end of the scale and what about the lowly grassroots animal activist or the duck rescuer? Are they too seen as a threat to the State?

There’s two different factors to that question. First, there’s simply no doubt that the legal system is structured around race, class and gender. If you are on the wrong end of any of those hierarchies you were going to do worse in the legal system. I don’t think there is any doubt about that. Those who are most impoverished and Aboriginal people are going to fare worst than anyone else as a general rule. Second, in terms of political dissent and how that fares, there’s an element of randomness in the system. In various cases we have looked at, lots of people said the same thing that random people got sued over, or else it was never clear why one person got sued and the other person didn’t. That randomness is important because it actually creates a greater fear. It’s never clear when you were going to get sued. There is particular patterns in terms of race and class that makes it possible to track and then there’s this randomness in terms of general dissent. That combination is not pretty when it’s put together.

Would this randomness you mentioned spill over to specific campaigns? E.g., would activists from duck rescue get an easier time of it than the activist down at the Port protesting against the Live Export Trade? Is it also dependent on what the Judge or Magistrate considers it to be a “serious crime”or not?

It can do. What one Judge considers to be trivial and not belonging in Court, another one sees as a serious affront to the Establishment. Certainly the animal liberation or animal welfare cases I have seen have run the whole gamut of different judgments and approaches. It also depends a bit on how the defendants approach the case. One of the things I’m trying to develop through the website and through other things I write, and through what we are practicing in South Australia was demanding and getting some form of agency so that the defendants are not simply victims but they can fight back. The inspirational model for that is McLibel where activists stood up to MacDonalds and it became the longest running libel case ever seen in England. We also talked about legislation to protect public participation. That’s one part. The other part is for activists to learn the rules and get empowered. In McLibel MacDonalds suffered so much out of that case that big corporations with the big PR budgets simply stopped suing people for 10 plus years because the McLibel example was so powerful. We need a combination of both law reform and also activists to be pro-active in the court system and treat it as another political tool and one more place to carry on the political struggle.

Animal Liberation South Australia ex- President Ralph Hahnheuser has recently announced he will not contest the charges against him allegedly having sabotaged a feedlot bound for the Middle East with pizza ham. What is your analysis of the case Greg?

Ralph and Animal Lib SA were sued for allegedly Ralph putting pizza ham in the feed of a sheep shipment rendering that shipment unsaleable. They were sued under the Trade Practices Act and Ralph was also prosecuted for criminal activity. He was found Not Guilty of the criminal activity to the outrage of the farming lobby. However they proceeded with the case under the Trade Practices Act. Just before the trial date Animal Lib SA accepted an offer from the farmers so they walked away. Ralph simply decided not to contest the case as he’s not doing animal work at the moment. In a sense then the case went ahead with no defendants. What that means in practice is, in essence, the farm lobby that brought the action will win the case however it will be a hollow victory because they won on forfeit. They’ll get a token damages payment or a token damages decision. Whether they can enforce that is another matter altogether. The farmers are not going to get any political mileage out of this.

There would have been a lot of debate had it gone to a proper trial. There were serious questions asked on whether there was any damaged caused and if there was damage whether it was actually caused by the sheep shipment or whether it was caused by the hysterical reactions of the farmers lobby who talked up the damage and value of their own goods. Those questions didn’t actually get properly tried because there were no defendants. At the end of the day if you look at the barbarism of the live export trade how does one make a calculation about economic damage as opposed to the conditions enforced on the animals in that export trade.

You have previously said “Tasmanian forest giant Gunns Ltd massive law suit against 20 environmentalists (now 15), including Bob Brown and more recently the David Jones litigation, over the Australian Institute report on corporate paedophilia have highlighted the issue of SLAPP suits. What is “corporate paedophilia by the way?”

The Australian Institute is a centre-left think tank based in Canberra. They published a report in August of last year entitled “Corporate Paedophilia” and this was a serious examination of the sexualisation of children in advertising and marketing. It was basically an academic piece as a contribution to public debate. When they launched the report The Australia put out a media release and they are actually being sued over the media release that launched the report. They are being sued because David Jones say that the Australian Institute was engaged in trade and business because it was selling its report and had mislead the public by the media release because it had made allegations about David Jones which weren’t true. In a sense it’s a straight defamation claim dressed up as an action under the Trade Practices Act. I think it’s very concerning if organizations putting out serious contributions to public debate are actually dragged through the courts – whether or not you actually agree with what they say in the report seems to me to be far less important than the fact that we should have a society where we can debate things. Surely the concerns about the sexualisation of children should be debated.

Did SLAPP suits start in America?

Yes and America being America where everything is up for being sued there’s been a legislative response to that. There’s been a community response with various anti-SLAPP NGO’s being formed and now there’s legislation in 25-26 States of America with various forms of anti-SLAPP legislation. Half the States in the US have actually passed some form of legislation because the problem is getting so out of hand.

How can one gauge the success or failure within the community of a SLAPP suit?

My concern about litigation around political issues is that it will silence public debate. If community organisations are silenced or completely distracted or weighed down by the amount of work so they loose their voice and they can’t have the voice they had it’s an example of “successful” SLAPPing in a sense.

I think it’s been inspiring in the Tasmanian case where Gunns sued The Wilderness Society, Bob Brown and a random selection of individuals. There was a wave of fear that went through the community. There were documented instanced where people stopped talking but by and large there’s a campaign to protect the forests and the campaign against what’s widely perceived as an environmentally damaging pulp mill have actually continued and grown. I think last weekend in Launceston 11,000 people protest against the pulp mill. It’s inspiring to see that amount of people have continued to speak up despite this massive law-suit hanging over their heads.

What’s you analysis of the Gunns Case?

Originally Gunns brought the case against 20 defendants over basically 10 different actions which were around specific forest protests and things they claimed were unlawful lobbying of Japanese customers and Banks. Plus there was basically a defamation claim. They have dropped half of those claims including the one where they claimed there’s this big conspiracy against them. What’s left in the case is 5 actions that were discreet actions in the forest or woodchip mills, with not huge amounts of damages attached. It’s a bit hard to see what’s left in it for Gunns Ltd.

Were Gunns bluffing? Were they just trying to get activists to back off?

I don’t know the motivations for Gunns. I don’t know why they brought the case but the important point is people haven’t stopped campaigning. By and large people have not been silenced and have continued campaigning and the campaign around the pulp mill has grown large. In another sense, you asked earlier, how do we stop these things from happening, well partly by continuing to campaign effectively.

What are you currently working on?

I’m still knee deep in the Gunns Ltd case. The Wilderness Society puts its defences in on Monday. It took 2 ½ years before we could actually lodge a standard defence because the Gunns pleading was thrown out 3 times and that’s still my main focus.

Will environmentalists win this case?

It’s hard to say. It’s going to be a long case. It’s taking a toll on the people being sued and it’s hard to see at this stage what the end point will be. It’s still a big, complicated case.

What about the Tasmanian Premier Paul Lennon’s contribution continuously being up in arms about the Greenies?

He’s got no formal ties to the case. He’s clearly shown in his statements in the past, he not only opposes politically the Greens but he’s aggressive towards them and doesn’t like them. He’s probably not losing sleep over the fact that a number of people are being sued over standing up for the Old Growth Forest to remain intact.

Greg’s Web Address: http://users.senet.com.au/~gregogle/index.htm