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The law can also be used proactively to open up greater space for progressive causes and for activist movements. Injunctions. Injunctions can also be sought in order to achieve the goals of activist movements. For example a successful injunction was granted to prevent logging at Brown Mountain in East Gippsland after Environment East Gippsland successful won and injunction against VicForest in the Supreme Court.

Case study:

Following the violent eviction of Occupy Melbourne from City Square and persist Victoria Police and Melbourne City Council harassment of the relocated occupation in Treasury Garden an legal action was initiated in the Federal Court. The action sought an injunction on the enforcement of the Melbourne City Council Local Activities Laws which prohibited ‘camping’ and the ‘possession of things’ in relation to the Occupy Melbourne Camp. The defendant argued that such an interpretation of the by-laws and their enforcement breach the freedom of political communication protections in the Constitution and also rights relating to free speech and assembly in the Victorian Charter of Human Rights and Responsibilities.

The matter has not been adjudicated at the time of writing! However, the process of taking an injunction to support OM right to camp as a form of protest demonstrates tensions which can arise when using the law as a proactive rather then as a retrospective tool. For example:

  • Responsibility to whom? - The lawyer on the record acting in such an injunctions primary responsibilities need to be the court and to their client. There are no formal responsibilities to the politics or the movement or the movement more generally. This can create tensions when a more conservative legal argument may be more ‘win-able’ and therefore adopted in the legal proceedings, however, other members of the protest may see these arguments as too conservative and misrepresentative of the goals of the movement. Whilst there are clearly important legal, strategic and cost motivations for doing this, it is important to bear in mind that legal cases will often receive media interest and defendants may be positioned by the media as broader movement spokes people. Therefore, open communications between lawyers and defendants taking such test cases and the rest of the movement is essential, to the extent that confidentiality requirements from court allow.
  • Injunction against whom? - Injunctions sought will often come with conditions, for example, OM sought an injunction which permitted them to protest in specified ways, to put up specified structures etc. Be aware therefore that injunctions risk becoming an double edged sword  the conditions placed upon them can end up restricting and limiting what movements feel they are able to do. Make sure there are public, political and strategic discussions about how to engage with this.
  • Looking after defendants - putting up your hand to be a defendant in a test case is a scary process. It requires a massive commitment of time in preparing legal documents and attending court as well as commonly media interest. It means exposing yourself to media and public scrutiny and having some of your personal details made public. In addition, it means carrying and bearing the risk of adverse cost orders, which may be made against people taking legal action. It means taking on the responsibility of instructing lawyers about how to proceed in the matter, and it also may mean exposing yourself to public criticism (including from other activists) about how you have chosen to run the case. Therefore it is essential to extend legal support to defendant taking this sort of action, consider how we can as a movement support them in decision making and fundraising around such test cases.