One of the dangers of living in a country with no Bill of Rights and
no official right to free speech and politicians don't want one.
http://www.theage.com.au/news/Opinion/The-Gunns-writ-is-an-attack-on-
democracy/2004/12/26/1103996430259.html?oneclick=true
or
http://tinyurl.com/6m2dm
The Gunns writ is an attack on democracy
December 27, 2004
The right to protest is under threat - in Tasmania and
beyond, writes Steven Curry.
Greg Barns seeks to defend Gunns, the Tasmanian timber and
woodchip conglomerate, from charges that it is stifling free speech
by suing 20 environmentalists and environmental groups for $6.36
million ("Say what you will, this is not about free speech", on
this page last Tuesday). He is dead wrong on all counts.
The Gunns suit is designed to damage as many prominent foes as
possible and to hurt the protest movement.
To join all the defendants to the suit, Gunns alleges a
conspiracy by claiming they all fall under the umbrella of the
Wilderness Society and are therefore complicit in any actions
attributed to it.
The use of a charge of conspiracy is similar to many recent
anti-terrorism laws here and abroad that criminalise anyone who
shares stated goals with terrorists or joins in political actions
that give "comfort" to them. The logic in all these sorts of cases
is deeply flawed.
If you support, by peaceful and legal means, some political goal
that others pursue with violence or criminal acts you are supposed
to be supporting the crimes too. It simply doesn't follow. In law,
a conspiracy charge requires that people know about the crimes and
actively engage in conduct that enables these crimes to happen.
Just knowing that a crime will be committed or may be committed isn't
enough.
In its writ, Gunns cites a litany of crimes. In fact, the number
of specific acts is reasonably small, but each one gives rise to a
series of distinct crimes, and each crime is listed separately,
giving rise to the sheer volume of the writ. Its size is therefore
misleading.
In some cases the writ specifies a person or people who
committed the acts, which makes me wonder why these individuals are
not being sued individually for the relevant damages. In many other
cases the writ alleges that "one or more" of the individuals listed
performed the action. If they do not know for sure, why impute
responsibility to a whole group, at least some of who weren't even
present?
However, the most damning aspect of the suit is that some of the
actions being sued for simply are not criminal acts directed
against Gunns or its contractors. One claim is that defendants have
engaged in "publicising grievances about the environment and the
activities of (Gunns) both in Australia and with its customers and
consumers overseas". This is simply a definition of protest.
In several other parts of the writ, Gunns allege that signs were
affixed to trees and fences on Crown land near logging coups.
Entering this land and putting signs on it may be criminal (in no
very terrible way), but it is not a crime against Gunns. Protesting
against Gunns may damage its interests, but it isn't criminal or
wrong. Connecting the protest against Gunns to alleged minor
criminal acts against the Crown doesn't alter the fact that Gunns
is suing people for voicing their opinions.
If the criminal acts themselves give rise to damages, it is the
Crown that is entitled to sue, not Gunns. Gunns is not a "victim of
crime" just because the crime enabled people to protest against
it.
What's more, pointing out that an act of protest involves a
crime is not grounds for saying that the protest was wrong. Most
pickets and street marches involve a crime, especially where, as in
Victoria, there is no system for permitting them. However, the
police have long recognised that minor acts of illegality, such as
walking on the road, ought to be overlooked to facilitate
protest.
This is the lesson of the Vietnam era and we shouldn't forget
it. The exercise of a common law standard of reasonableness, the
recognition of the very great weight of democratic values, and the
sensible exercise of police and judicial discretion all suggest
that some laws just shouldn't be enforced some times.
Gunns is not entitled to overturn these profound principles in
the civil courts.
Gunns does allege some serious criminal misconduct, some of
which may have endangered life. It is entitled to sue over acts of
criminal damage to equipment that threatened health and
livelihoods, but it should only sue those responsible for them.
If it can't show that Bob Brown, for example, actually stuffed
mud in an exhaust pipe, or conspired with those who did, it is not
entitled to sue him just because he is in the same movement. Most
of the claims in the writ are simple attacks on people for engaging
in protest against it. The use of unsubstantiated claims of (mostly
minor) criminal conspiracy cannot hide the fact that the writ goes
after people mostly just for "publicising grievances".
Gunns should drop the writ. Everyone who cares about the
protection of the right to protest should stand up against this use
of civil courts to undermine basic democratic values.
Dr Steven Curry is a research fellow at the centre for
applied philosophy and public ethics at the University of
Melbourne, and a member of the Australian Society for Legal
Philosophy.
--
epicurus1*at*optusnet*dot*com*dot*au
apatriot #1, atheist #1417,
Chief EAC prophet
http://members.optusnet.com.au/~pk1956/
Apatriotism Yahoo Group
http://groups.yahoo.com/group/apatriotism
Sunday: A day given over by Americans to wishing that they themselves
were dead and in Heaven, and that their neighbors were dead and in
Hell.
-Mencken
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