Strategic litigation

Doctors for Refugees

On 27 July 2016, the Fitzroy Legal Service filed a constitutional challenge in the High Court of Australia on behalf of Doctors for Refugees. The case will test whether secrecy laws in the Australian Border Force Act 2015 are an impermissible burden on the implied freedom of political communication. The case has been enabled through the generous support of barristers, lawyers from the commercial sector, Fitzroy Legal Service volunteers and GetUp. Doctors have been at the forefront of raising humanitarian concerns regarding conditions and treatment of asylum seekers and refugees, and again express their resolve to advocate for patients and public health through commencing this litigation. An overview of the case can be found here. The Young Liberty for Law Reform report Operation Secret Borders can be viewed here.

The case has received support from a number of organisations, including the Australian Lawyers Alliance. Their media release can be viewed here.

The East West Link case

Murphy v State of Victoria & anor [2014] VSCA 238

Between April 2014 and January 2015, we instructed a team of barristers acting pro bono (Ron Merkel QC, Melinda Richards SC, Julian Burnside QC, Simona Gory, Caryn Van Proctor and Matthew Albert) who ran a consumer law case that traversed the Supreme Court, the Court of Appeal and the High Court. Pivotal to the case was the engagement and support of various community collectives, including most pivotally the Residents Against the Tunnel.

The premise of the case involved the allegation that the public-private partnership through which the East West Link was to be constructed, financed and operate involved the State in carrying on a business. It was further alleged that the representations made in the short form of the business case as to the Net Economic Benefit and Benefit Cost Ratio of the project were misleading and deceptive, and made in the course of trade and commerce.

The plaintiff sought injunctions preventing the continued publication of the representations, and entering into contracts where those representations had been made in the procurement process. Discovery of documents, including the long form of the business case, were opposed by the State and the Linking Melbourne Authority on the basis of public interest immunity. The case proceeded in the absence of discovery in the Supreme Court and was lost.

On appeal to the Court of Appeal, the Court made a number of significant statements in relation to the manner in which public private-partnerships operate, and the scrutiny to which they might be subjected. For example, in relation to the legal concept of carrying on business in trade or commerce within the meaning of the Australian Consumer Law, the Court stated (at paragraphs 47 and 48):

the word ‘business’ is an ‘etymological chameleon’ which takes its meaning from the context in which it appears and from the purpose of the statute in which it is found.  . . .  [I]ts meaning is informed by the purpose of s 2B of the Competition and Consumer Act 2010 which is to ensure that the Crown in right of the State of Victoria should in its commercial activities be subject to the same regime as corporations and other private entities.

In relation to the distinction between the governmental and the business function, the Court stated (at paragraph 58):

as is established by authority, there is a distinction between those functions of a government which are purely governmental or regulatory and those which may entail the carrying on of business, it is important to keep in mind that, in some cases, the two may co-exist.  . . .  [B]etween those extremities conceivably lies a range of possibilities of mixed governmental and business activities which, depending on all the facts and circumstances of the particular case, may yield a conclusion that the State is carrying on a business in conjunction with or at the same time as discharging its purely governmental functions.

The appeal was successful in having the decision below set aside, though it was held that the balance of convenience did not favour the granting of an injunction preventing the signing of the contracts. It was this question that was taken to the High Court, that is, the question of the relevance of the harm to the public as a relevant factor in assessing where the balance of convenience lay. It was decided this question could only be addressed after the matter had been through the trial process back in the Supreme Court.

At all times, the focus of the litigation was on transparency in government. In July 2014, the Productivity Commission Inquiry into Public Infrastructure made findings that ran contrary to the State’s position, recommending (recommendation 2.3) that ‘All governments should commit to subjecting all public infrastructure investment proposals above $50 million to rigorous cost-benefit analyses that are publicly released and made available for due diligence by bidders.’ The Commission stated that, in its view, ‘the benefits created through transparency are likely to be substantial and significant effects on bids are unlikely, provided there is effective competition in procurement’ and that private participants should understand that the ‘normal presumption of transparency should prevail as a condition of involvement in government-backed projects’.

Following the 2014 election and change of government, the business case was released for inspection to the public.

Inquest into the Death of Gregory John Caulfield

Finding - Inquest into the Death of Gregory John Caulfield

We worked with the family of Gregory Caulfield who died after falling from a balcony at the Elgin Street flats in Carlton after the deployment of capsicum spray by police. This was the second death following shortly after the deployment of capsicum spray at that location in recent years.

The circumstances of Greg’s death involved police attendance at a residence where Greg had broken in with a friend to retrieve property alleged to have been stolen by the tenant. In the course of the policing operation, which lasted only a few moments, three of the four police members present suffered secondary exposure to capsicum spray and fled the flat, leaving Greg, as the primary subject of the spray, alone and presumably in a highly vulnerable state. Greg then climbed onto the balcony and fell from the ninth floor.

Submissions to the Coroner’s Court were focused on the appropriateness of the use of force against Greg in the circumstances, the approach taken to deployment when compared to training and protocols of Victoria Police, the safety considerations relevant to deployment in enclosed spaces, the central importance of communication for effective and safe policing operations, and the causative links between alleged breaches of training/protocols, safety risks argued to be inherent to the use of capsicum spray, and the death that ensued.

On 22 September 2013, it was reported that Police Association Victoria Secretary Greg Davies believed the phasing out of capsicum spray would dramatically reduce situations in which police and bystanders were affected and should lead to increased public confidence. (‘Police Ditch Capsicum Spray’, The Age, 22 September 2013).

The findings of the Deputy State Coroner, Mr Iain West, acknowledged, as put by counsel for the family and conceded by counsel for the police, that the operation was affected by a lack of direction resulting in the loss of custody of a co-accused, and a failure to issue a verbal warning prior to deployment of capsicum spray leading to secondary exposure on members. It was ruled by the Court that these matters did not contribute to Greg’s death in a causative sense.

Gregory Caulfield came from a large supportive family, and was a loving father to two young children. We wish to acknowledge the great courage of the whole of Greg’s family in engaging with these proceedings with the express aim of preventing this type of tragedy happening to another family.