Searching randomly

Recently the Parliament of Victoria gave police powers to search randomly for knives.

Public policy in relation to the prevention of crime should be evidence-based. There is no evidence that the incidence of knife crime is increasing - in the two years before the legislation was introduced, the incidence of offences in which a knife was used or brandished declined by 2.9%. Moreover, there is no evidence that random searching has any useful impact on the incidence of violent crime.

Introducing the legislation, the government admitted as much when it stated that it was reacting to "public perceptions" but carefully made no claim that the legislation would have any impact on the reality. The government also admitted that the new laws were in breach of the Charter of Human Rights and Responsibilities - as if human rights were a simple convenience, rather than a foundation stone of sound administration.

The powers accorded to police under these provisions are sweeping. There is no exception in relation to searching children, and no requirement to have a friendly adult present if this is done. There are similarly no exceptions for disabled persons. This extends to strip searches. Do we really want our 12 year old children randomly strip searched by police when they catch the train to the city?

The powers to search are in practice unchallengable and unreviewable. The terms of the powers are so sweeping that courts have no real latitude to interfere. The power is therefore unaccountable. Unaccountable power will, as a matter of human experience, be abused. That is why it is the role of parliamentarians to ensure that the power they confer is always accountable.

Random public searches contribute to sense of panic and unease – they trample on self-respect, and build up resentments. They constitute a loss of freedom.

There should be strict limits on the power of police to search. Just as in other States, this should take place only when there is a reasonable suspicion justifying the search. Anything less is arbitrary, and is likely to be discriminatory (eg against young people or minority groups) and may well be undertaken for an improper purpose - such as singling out attractive women, as was found to have occurred at airports recently.

There have been numerous cases in which police have planted evidence against suspects in the past. This becomes an increased risk when an unreviewable opportunity for a random search is given to police.

Why have a democratic system if it is to be indistinguishable from a totalitarian state, where no-one is safe from police searches and the abuses they so often carry with them?

Random police searches trample on self-respect and dignity of citizens, who should be free to go about their business without interference - unless the authorities can show just cause to the contrary.

External Links

• Control of Weapons Act 1990 (as amended)
• Police Search Powers on a Knife Edge (Sunday Age)
• Sue Pennicuick's speech to Parliament
• A Canadian experience
• Chris Berg Opinion Piece

Goolengook

Just after Bob Brown was elected a Senator in 1996, I walked out of court at lunchtime. I was in Hobart, prosecuting orange roughy fishermen for fraudulently understating their catch.

I turned on my mobile and it rang. It was Margaret Blakers, Bob Brown’s personal assistant. She told me Bob had just been charged with obstructing lawful forest operations at Goolengook forest in East Gippsland.

As it happened, I already knew that, because his photo was all over the front page of the papers that morning.

Now it was for me to act for him.

The first concern was the prospect that if he was convicted of any serious offence, he might be disqualified from taking his seat in the senate. When I later met with Bob and his advisers, there was discussion about how the court case could be used to highlight the plight of the forests, but I had a different perspective: the way to get good publicity was to win the case, and I thought we could.

I had a good team, with fellow barristers Klaus Mueller and Brad Baker, and some diligent instructing solicitors, including Bill Coady and Bill Lambros.

Goolengook was spectacular forest, and had been the site of a long running logging blockade.

The charge was obstructing lawful forest operations. In fact, there was no logging occurring at the time, and nothing to obstruct. But more importantly, the prosecution would have to prove that the logging was lawful, and I was not sure that it was: the logging on which the police relied was carried out next to the Goolengook River - listed as a heritage river under the Heritage Rivers Act.

The Heritage Rivers Act recognised the Goolengook River as having the best continuum of rainforest in Victoria, and made logging unlawful in the area it had protected. That area was defined by reference to a map. We had to go to the Surveyor-General's office to obtain a copy of the map which was referred to in the Act.

Looking at the map, and looking at the logging coupe plans, one thing leapt out at me: the Act required that there be 200 metre buffer zone either side of the river, but the coupe plan purported to allow logging to within 100 metres of the river.

The logging was in breach of the Heritage Rivers Act, and Parliament had set out in the Heritage Rivers Act (s 15 of the Act at that time) that the Act was to prevail over other Acts, and any instrument (ie document) authorising a contravention of the Heritage Rivers Act was "void".

In due course we travelled to Moe Court to defend Bob Brown and two others who had been charged with him. The fate of several hundred other protesters - who had also been charged - would depend on this case.

The police witnesses gave their evidence. They included the foresters who had drawn up the coupe plans and authorised the logging. None of them had considered the Heritage Rivers Act, and none of them had looked at the map which Parliament had said should prevail over any other logging rules.

It was clear that the prosecution could not prove that the logging was lawful, and after three days of hearing (extending into early 1998) the case was thrown out.

The Kennett government was embarrassed by the outcome. It dropped the charges against all those who were charged, and suspended logging in East Gippsland for the remainder of the summer - the court ruling meant that the East Gippsland Forest Management Plan was "void" in its entirety, and they had to start again.

The government introduced legislation to retrospectively validate the logging plans, and to amend the strong protection in the Heritage Rivers Act. It reduced the buffer zone from 200 metres to 100 metres. The government also introduced legislation making it an offence to enter a "forest operation zone" - large areas where logging might or might not occur.

They also appealed to the Supreme Court against the dismissal of the charge against Bob Brown.

The Supreme Court hearing came on late in 1998. I was opposed by Susan Crennan QC, now a High Court Justice. Justice Kellam reserved his decision, and we came back on 23rd October (which happened to be my wife Sally's birthday) to hear the result.

Justice Kellam found that the prosecution argument faced "insuperable obstacles" and threw out the appeal. He confirmed that the charge against Bob Brown remained dismissed, and ordered costs against the prosecution.

It took many more years to save Goolengook, but that night, at least, we all went out to a restaurant in Southbank and celebrated!

External Links

• DPP v Brown (Supreme Court)
• Heritage Rivers Act 1992 (as now amended)
• Save Goolengook
• Goolengook - TWS

The Gunns 20

The Gunns 20 in Hobart

In mid 2004 I had lunch with Bob Brown to discuss some legal issues, and I gave him a copy of my book "Slapping on the Writs" about the use of strategic litigation to silence community groups.

On 13th December 2004 I was on my way up to Brisbane with my family for my niece's wedding. Our first night's stay was to be at Dubbo. I was just starting to unwind after a long drive, when I turned on my phone. It lit up with missed calls.

Then it rang: it was Bob Brown's adviser Marg Blakers. Had I heard the news? Australia’s biggest woodchipper and Tasmania’s largest company, Gunns Ltd, had just issued a writ out of the Supreme Court of Victoria against 20 (mostly Tasmanian) environmentalists, including Senator Bob Brown and the Wilderness Society. The writ claimed damages of more than $6 million for “corporate vilification” and “conspiracy to injure by unlawful means”.

I did some media interviews that night, and I'm sure I annoyed my family on that trip with long calls about strategy to various people whenever we were in mobile phone range.

My friend Dr Suresh Pathy, an anaesthetist, rang me when we were somewhere near Armidale. He was the secretary of Doctors for Native Forests - a Victorian group, and the twentieth Defendant: "They've got the wrong party!" he said. "We don't operate in Tasmania. The 19th Defendant is supposed to have said something on our behalf, but we don't know him. He's not part of our group, and he wasn't speaking for us."

In Tasmania, there is another group called "Doctors for Forests" which operates in Tasmania - there are no formal links between the two groups.

On 15th December 2004, two days after the writ was served, Gunns announced that it intended to build a large pulp mill in the Tamar valley. The reason for the issue of the writ now became obvious: it was intended to distract and silence opponents to its project.

The "Gunns 2o" as Bob Brown called the defendants, stood together in Hobart with tape over their mouths to symbolize the attempt to silence them. Many knew they stood to lose their homes from this litigation, and were in deep distress.

In due course I was briefed, along with Noel Russell, to act for Doctors for Native Forests. Vanessa Bleyer was our instructing solicitor.

The writ was extremely lengthy (227 pages). In the "Statement of Claim" which set out its allegations in detail, Gunns took exception, amongst other things, to conservationists’ correspondence with the Japanese buyers of Gunns’ woodchips in which they were asked to “review and cease … sourcing of native woodchips from Tasmania”. There was a complaint that representations were made to the Banksia environmental awards to oppose Gunns being included as a finalist. There were many complaints about public statements by opponents to logging.

All these actions of engaged citizens participating in the decisions that affected them were labelled conspiracy - it was a neat trick, redefining democracy as "conspiracy".

The statement of claim was bizarre, and included completely novel causes of action.

We wrote to EMA Legal, the solicitors for Gunns, and told them they had sued the wrong party.

Eventually a lengthy reply came, denying any mistake, and demanding damages and referring to a private email Suresh Pathy had sent to members of the group.

We asked them to pay half our costs to date, and gave them 7 days to think about it.

The first question to ask yourself about a statement of claim is: "Can I understand it? Do I know what the allegations are?"

It did not take long, looking at this convoluted and confused document, to realize that we had no hope of mastering what the case was against our client - Doctors for Native Forests - and we did not think any other defendant would be in any better position.

A team of counsel assembled to defend the writ. Most other counsel in the case were at first reluctant to take the step of applying to have the Statement of Claim struck out. In a long meeting in the chambers of Mark Dreyfus, Noel and I finally prevailed, and it was agreed by (most) other counsel to join us in the application to strike out the pleading.

The hearing was listed for 4th July 2005 - a Monday. After 5 pm on Friday 1st July (the last business day before the hearing) Gunns served us with a proposed amended Statement of Claim. This time it was 360 pages long, and even more complex.

Gunns expected us to seek an adjournment. They wanted to keep the bird aloft a bit longer, even though it didn't have a feather to fly with.

All weekend, to all hours, we worked on mastering the new document.

On the Monday morning counsel for Gunns announced that there would be yet further amendments, by way of "particulars" (this is where more detail is provided of specific allegations), and said that the material ought to be considered as a whole. He did not make clear what he was asking for but after ten pages of transcript the judge asked:

So you're seeking an adjournment effectively of today's application?

In a long answer, counsel for Gunns eventually conceded that he was. Counsel for the defendants opposed the adjournment, pointing out that we had been asking for particulars for months and had effectively received nothing, and did not expect anything further now.

The adjournment was refused.

We then argued the case for the remainder of the week. On 18th July the judge delivered his damming assessment of the Gunns writ - in both forms. It was struck out. The judge described it as "embarrassing", "confusing", "complex" and "unintelligible".

A third Statement of Claim was then delivered some months later. Again, we applied to have it struck out, and again the judge threw it out with a damning assessment.

The Gunns case was now in serious trouble. The adverse publicity had seen the Gunns share price plummet. Gunns sacked its lawyers and hired a new team.

At this point Gunns dropped the case against Doctors for Native Forests, and agreed to pay all costs.

The case then collapsed against a number of other defendants, including Bob Brown, and bit by bit the Gunns litigation unravelled.

Finally, on 1st February 2010, Gunns abandoned the case against the remaining four defendants, and agreed to pay them over $150,ooo in costs.

Gunns ended up paying several millions of dollars in costs to the defendants, to say nothing of what it paid to its own lawyers. But for many of the defendants it was an immense strain, imposing real financial and personal costs - just because they had stood up to a powerful company.

The Gunns litigation was a try on by well resourced plaintiffs who were determined to tie up their political enemies in court for as long as possible and as expensively as possible.

Litigation like this brings our legal system into disrepute, and should be outlawed by legislation.

External links

• Bush Lawyer's Guide to further information on SLAPPs
• Draft Bill submitted to the Victorian Attorney-General
• earlier post on SLAPP suits
• Being Forest Friendly
• The National Interest
• Parliamentary Debate on SLAPP suits
• Stop the SLAPP
• Bob Brown's view
• Gunns 20 website

Brian speaking about forest protection, campaigns and the law

Brian speaking about forest protection, campaigns and the law at the Feast for Forests fundraising dinner in Yarraville

John Béchervaise

As I sat in his lounge room in Geelong on a winter’s day twenty years ago, sunlight streamed feebly in through the large windows. John Béchervaise was showing me some of his magnificent photographs. He was telling of the time he discovered the Prince Charles Range in Antarctica:

We skied for nine days over featureless snow plain. Then one day, as a result of the effects of refraction, we could see mountains high in the sky.

He looked at me. I was willing myself to be there.

It was as if we had created those mountains out of our own minds.

The peak that he first saw is now called Mt Béchervaise. It is twice the height of Kosciuszko.

Explorers are of an age gone by, and today there are adventurers. But Béchervaise went to new places. He led three ANARE expeditions to Antarctica, and it was during the 1953 tour that he discovered the Prince Charles range.

As a 17 year old boy living in Murrumbeena he had never seen snow which featured in so many of the books he read. One day he walked out the door and headed east, determined to continue until he got to snow. He eventually found it at Mt Torbreck.

What did he think of it? “After having imagined snow for so long it seemed familiar even then.”

The following year he was chosen as a teenager to join a party going in to Tali Karng with the governor, Lord Somers. In those days it was a major undertaking. The group included people like Hoadley (who accompanied Mawson to the Antarctic), Bill Waters, Crosbie Morrison, and Alan Moorehead - later a famous writer. John showed me a photograph of a biscuit on which all the participants had carved their names.

Here in Australia he is particularly well known for being the first person to climb Federation Peak in South West Tasmania, taking a party of schoolboys in 1949 to claim the coveted summit. The plateau around the peak is named Béchervaise Plateau.

But there are many other feats. In 1947, using half track army surplus vehicles, he took a group of Geelong College students to Uluru (Ayers Rock). It was the first time vehicles had travelled there. The road now follows the route he took on that trip, their tracks being scooped out when the road was fashioned shortly afterwards. During that trip he climbed Kata Tjuta (the Olgas) a difficult climb which may not now be done. He did it unroped and it was a climb which took almost all day. He thought he would be the first to have reached the summit but he found a bottle with a note in it from a Katherine policeman who had made the climb in the early 1930s. He subsequently met the policeman.

He learnt his rock climbing in England. John Béchervaise (the name is from the channel islands) was a conscientious objector during World War II, a position readily accepted in England, where he happened to be, and which was received much less sympathetically in Australia. During the war he worked in ambulance activities, and was able to pursue rock climbing, a sport which had not really begun to develop in Australia.

For some years John Béchervaise was the editor of Walkabout, a marvellous Australian magazine of the 1940s to 1960s.

There were many other trips. He landed a group of students on Rodondo Island, the visually striking granite outcrop off Wilson’s Promontory - the first people recorded to have been there. They lived there for a week surveying the island and even distilling their own water.

The trip he remembered most fondly was a month on the D’Entrecasteaux Islands off Western Australia, during which the group landed on many pristine islands and discovered a new species of plant.

He showed me a photograph of a group of students at Mt Ellery in East Gippsland. He told me it was a three week walk to Mt Ellery from the nearest road when the photograph was taken in the early 1950s. Now it is half an hour from a logging road.

I went walking with John Béchervaise when he was 80 years old, but still active. He took me along the river on which he lived in Geelong, showing active interest in certain favourite trees, in small leaves, and in memories of places he used to camp at with students.

The Béchervaise legacy has been significant. Many students he introduced to the bush and especially to climbing were inspired by his example. A notable example is my late friend Chris Baxter, the founder of Wild magazine with Mike Collie and myself, who, as a student at Geelong Grammar, was introduced to rock climbing by John Béchervaise in the first ascent of Tower Hill at the Grampians.

His life saw many changes. As a boy he remembered hansom cabs at Flinders Street Station, and in the end he lived in an age of space travel. An inquisitive, adventurous, disciplined person, he helped to seek out those places no one had been to before, and was forever drawn to blank spots on maps.

Greens FUNRaiser for the Melbourne campaign

Date: 14 September · 19:00 - 23:00
Location: The Comic's Lounge, 26 Errol St North Melbourne
Time:  7pm for dinner, or 8pm for just the show

As the state elections draw closer, show your support for The Greens and Brian Walters, the Melbourne candidate, by raising some FUN!

The Greens invite you to a fundraiser starring Rod Quantock, Claire Hooper (Good News Week) and a feast of great talent including award-winning illusionist Simon Taylor and comedians Fox Klein, Doug Chappel and Matt Kenneally (Best Comedy, Melbourne Fringe 2007) and the rich vocal harmonies of The Nymphs. There will also be a bizarre range of items up for auction.

For more details and bookings see Events

Land ho!

For most of us, land is our largest financial investment. All that effort looking at the real estate pages. Going along to auctions. Working out how to get an edge in the bidding. Or cowering inside while some agent you’re not too sure about sells your house. All those years paying off the mortgage.

It is a very modern idea that we own land. In the middle ages it was held from one’s lord, who held it from the king, who held it from God. In old testament times, the jubilee every fifty years required returning any land you had acquired, so that there was a constant evenness of distribution.

Forty years ago in the infamous Milirrpum v Nabalco case, concerning the ownership of Nhulunbuy in Arnhem Land, it was held by the courts, (before Mabo) that Aborigines could not be said to have owned land because they could not alienate it. They could not sell it. Remarkably, judges held that if your attachment to the land was so great that you had no concept of getting rid of it, you did not own the land.

But does anyone own land? Can we take it anywhere? Did we make it?

The land has been here for ages before we were born – indeed for ages before any human existed. We will, whether buried or cremated, end up resting in the land – not the other way round. Our so-called ownership will be a mere shrug in the memory of the land.

To speak of owning land does not honour those who will use the land after us. We are but the custodians of our land – whether it be our suburban block or the country as a whole.

Many spiritual traditions refer to "Mother Earth". If we are not parents we still have a stake in the generations to come. And all of us are children of parents. If we are disconnected from our parents we can pay a price all our lives, and it is the same if we are disconnected from the land. And the disconnectedness of the community affects each one of us as members of that community.

To claim ownership of land is to claim something more than the reality. We may look after land. Other people may acknowledge certain rights we can exercise in relation to land. But in the end, whatever our rights, we are merely trustees. We depend on the land - not the other way around.