Port Phillip Bay near the Rip - photo by Greg Blair
In 2006 the Blue Wedges coalition approached the Victorian Supreme Court to challenge the legality of the government’s “trial” dredging of Port Phillip Bay. Blue Wedges alleged that the dredging was in breach of the government’s own laws, because it was being conducted without any environment effects statement. The law required that “no works” be carried until such a statement has been completed. These trial works involved 5% of the overall works, and moving 1.7 million cubic metres - enough earth to make a structure stretching from Melbourne to Sydney. The claim by Blue Wedges had, at the very least, real prospects of success.A challenge like this takes months to be given a full hearing by the Supreme Court. By then the dredging would have been finished, and there would be no point in the Court ruling on the case.
Blue Wedges coalition asked the court for an injunction to prevent works until the issue could be fully argued.
In such cases it is usual for the party who seeks an injunction to give the court an undertaking to pay any damages caused by the delay in works if the court ultimately rules against the legal challenge. If you want a court to stop something so you can bring a case, you must (usually) be prepared to cover the loss caused if you fail.
In this case, the prospective damages from a delay in the dredging was said to be some $32 million, accumulating at over $300,000 a day. There was no prospect of a community group honestly giving an undertaking to pay such a vast sum, and they sought to be excused from the requirement.
Justice Mandie refused to excuse Blue Wedges from this requirement, and accordingly would not grant the injunction. The merits of the case were never heard. (There were subsequent cases brought by Blue Wedges, but they were tangential, relying on Commonwealth legislation, and were never as strong as this challenge.)
Whatever you think of dredging Port Phillip Bay, the Blue Wedges case highlights an important gap in our rule of law. If the government was acting unlawfully in this trial dredging, surely the rule of law requires that it be held to account. But how?
Justice Mandie approached the case with a conventional view: the common law assumes that private individuals take court action only to protect their private interests. The common law also assumes that the only party who approaches the courts to uphold the public interest is the Attorney-General. Both these assumptions are outdated and wrong.
The common law model does not take account of community groups approaching the courts not for any financial interest, but for the public good. It is not unusual for community groups to be in stark conflict with the Attorney-General of the day in doing so. When Liberty Victoria approached the Federal Court seeking relief for the asylum seekers on the Tampa they did so in spite of strong efforts by the government of the day, including the Attorney-General, to oppose them. But if Liberty Victoria, (and other concerned members of the public) had not approached the court, there would have been no one to speak for the asylum seekers whose rights were being overridden.
And yet, when the courts consider cases brought by such community groups, they generally apply rules designed for a different situation – namely for those who come to court to defend their private interests.
The safeguard of relying on the Attorney-General to protect the public interest is no longer enough. It is true that the Attorney-General may intervene in any case as of right, and may give his “fiat” for an issue of public interest to be litigated by another person. But what if the Attorney-General is himself party to the conduct in question?
In the Blue Wedges case, the Victorian Attorney-General Rob Hulls was also at the time the Minister for Planning, who administered the environment effects process. He made public pronouncements in support of the trial dredging. He was not to be regarded as a genuinely independent law officer who would defend the public interest in this matter despite his own political interests.
Whether in Victoria or elsewhere, this is the reality with Attorneys-General in Australia today. They are no longer independent of the political fray, and our reliance on the Attorney-General to uphold issues of public interest is unrealistic and ignores the political pressures to which they are subject.
Access to justice is critical for the rule of law. There is no point having the law if members of the community are not able to approach the courts to obtain remedies to enforce it. It is an affront to the rule of law to leave anyone – especially the government – free to break the law because no one can afford to challenge them.
Where issues of public interest are raised, particularly by non-profit groups acting for what they perceive to be the public good, it is no longer enough to assume that such matters are only for an Attorney-General to pursue. Rather, courts should ensure that the real issues in claims of unlawfulness by government authorities are determined as soon as possible.
It is time for a comprehensive approach to giving community groups a hearing in the courts. New procedures are needed. Where non-profit groups approach the courts in order to uphold the public good, in a proceeding with real prospects of success, generally they should not have to pay costs, they should not have to give security for costs, and they should not have to give undertakings as to damages.
Upholding the rule of law requires us to give the community a hearing.
Turbidity Plume from channel deepening