Opening the doors to public interest litigation

"Opening the doors to public interest litigation", Eliza Ginnivan, Australian Lawyers Alliance

Sometimes when it rains, it really buckets down. In just one week in June 2015, courts in two continents delivered landmark public interest victories on two of the defining issues of our time.

In the Netherlands on 24 June, 900 co-plaintiffs successfully obtained a court order forcing the Dutch government to adopt more stringent policies against climate change.  This historic verdict was the first time a judge had required a State to take action against climate change, and has inspired climate change litigation around the globe.

Two days later, the US Supreme Court overturned a patchwork of discriminatory state laws and decades of political equivocation to rule that marrying the person you love, regardless of their gender, was a fundamental Constitutional right.

These cases demonstrate public interest litigation at its finest. Supported by groundswells of community support, these cases broke entrenched political impasses and overturned laws that lagged behind community values.

But in Australia public impact litigation wins like these are harder to achieve, in large part due to burdensome costs rules. Neither the Dutch nor American applicants were hampered by the risk of a significant adverse costs order being made, which would require the losing party to pay the other side’s legal costs.

These cases demonstrate public interest litigation at its finest. Supported by groundswells of community support, these cases broke entrenched political impasses and overturned laws that lagged behind community values.

But in Australia public impact litigation wins like these are harder to achieve, in large part due to burdensome costs rules. Neither the Dutch nor American applicants were hampered by the risk of a significant adverse costs order being made, which would require the losing party to pay the other side’s legal costs.

From the first client interview in Australia, the threat of an adverse costs order has a chilling effect on public interest litigation.

Costs rules are an important part of the justice system. They deter vexatious or speculative actions and compel parties to fully and forcefully argue their positions. But, by and large, they’re based on the assumption that the plaintiff stands to gain personally (and handsomely) from a win.

This isn’t usually the case in public interest matters, where an individual may be compelled to seek a change in the law on behalf of a disadvantaged group, or where an individual must risk their financial future for the sake of compassion, not compensation. The default rule that ‘costs follow the event’ is not suitable for the majority of these cases.

For decades, law reform commissions have recommended that governments view meritorious public interest litigation as an opportunity and not a threat, and take positive steps to foster it. For just as long, politicians have responded by binning these recommendations and quietly winding back litigation assistance.

Legislative interventions to foster public interest litigation, such as protective costs orders and open standing rules, are sporadic, limited by jurisdiction, the target of rhetorical attacks or subject to bogus parliamentary enquiries.

The stifling of public interest litigation puts the actions of governments and corporations increasingly beyond the reach of the courts and beyond review.  Coupled with funding cuts to the community and Aboriginal legal sector, and conditions on federal funding that prohibits frontline services conducting law reform lobbying and advocacy, the ability of the people to challenge unjust laws that create widespread disadvantage is effectively eroded.

The Grata Fund has been created to address this need. Established via grassroots campaigning organisation GetUp and fully independent, the Grata Fund is Australia’s first not-for-profit public interest litigation fund. Named after the first woman to practise law in Australia, Grata Flos Matilda Grieg, the Grata Fund offers protection from the threat of adverse costs orders to people who are determined to take cases to court that serve the interests of the broader community.

The Grata Fund’s greatest strength is its collaboration with others. We bring together some of the best legal practitioners, community advocates and strategic campaigners to propose and assess cases. We capitalise on the wealth of public interest law and advocacy already being conducted pro-bono by specialist legal centres, corporate firms and barristers.  And we couple smart legal challenges with broad-based community campaigns for maximum impact.

Fully independent, funded entirely by community donations and with a hard-hitting board, Grata is gearing up to fund its first case in 2016. By protecting plaintiffs from the threat of adverse costs orders, we’ll support individuals and community groups to use the power of the courts to secure landmark decisions like the Dutch and the US decisions, and do our part to improve access to justice for those who need it most.

Click here to see the original article on the Australian Lawyers Alliance website.