5 June 2020

Australian governments must ensure that COVID-19 emergency measures and policing are consistent with democratic freedoms and human rights.

Orders introduced by governments in response to COVID-19 have understandably led to temporary restrictions of freedoms to safeguard public health across the country. However, these restrictions must be proportionate, non-arbitrary, non-discriminatory and addressed towards a legitimate aim under the International Covenant on Civil and Political Rights, of which Australia is a state party.

“Governments at all levels must avoid imposing non-proportionate, wholesale bans on protests, and explore alternative measures that can balance public health safeguards with the freedom of assembly,” said Isabelle Reinecke, Founder and Executive Director at Grata Fund. 

The New South Wales and South Australian police forces have taken divergent approaches to Black Lives Matter protests in their states.

29 May 2020

A report released today outlines the dramatic changes to Australian courts in response to COVID and the transformative potential of these changes for how the courts, the third pillar of our democracy, function and access to justice. 

Grata Fund’s report, Australian Courts: How a pandemic built our launchpad to the future, found that the adoption of new technologies like virtual hearings and electronic filing can enrich the democratic role of the courts by providing for open justice, allowing more people to access court services and reducing the prohibitive costs of litigation, particularly for cases in the public interest. 

21 May 2020

Grata Fund, in partnership with law firm Hall and Wilcox is today launching the COVID-19 Law Monitor, a resource for journalists and civil society to track COVID-19 measures introduced by governments that impacts on civil liberties and freedoms.

COVID-19 measures have been introduced, amended and rolled back rapidly across Australia making it difficult to keep track. COVID-19 Law Monitor will track the powers used to ease restrictions in different stages across Australian jurisdictions, or if a second wave of COVID transmission occurs, the introduction of new measures.

13 May 2020

Today, a former Victorian Court of Appeal judge Anthony Whealy, and law and integrity groups, including the Centre for Public Integrity, Grata Fund, Transparency International, PIAC, Amnesty International, Human Rights Law Centre and The Australia Institute are calling on the Prime Minister to establish greater transparency and integrity measures for the opaque and unaccountable National Covid Coordination Commission (NCCC) and its Manufacturing Working Group, ahead of the Commission's appearance at Covid Select Senate Committee hearings.

Peter Harris, one of the NCCC commissioners, will appear before the COVID-19 Select Senate Committee today where he is expected to be questioned about the lack of transparency and integrity measures in place for the NCCC.

8 April 2020

A report released today by Grata Fund lays out a road map for the Government to maintain public trust through the management of the COVID-19 crisis.

Within a matter of weeks of Covid-19 hitting our shores, the two accountability arms of our democracy were curtailed with the adjournment of Parliament and the Courts forced into various stages of closure and transition to digital operations. 

Australian politicians are making decisions of enormous magnitude. These decisions will have life and death implications for Australians, while also reshaping our entire economy, social security system and widening the powers of law enforcement and its relationship with us. 

At a time when public trust is our best defense against COVID-19, steps to strengthen our democracy must be a cornerstone to every Australian government’s response. 

2 April 2020

Eight legal and civil society groups have today called on the Australian Senate to establish a Select Committee with broad powers to review and report on the Federal Government’s response to the COVID-19 pandemic. 

We are living through an unprecedented global crisis that is touching every aspect of our lives. Australians are looking to the Morrison Government to guide the country through the COVID-19 public health emergency. With the Federal Government asking people to make extraordinary sacrifices, trust and confidence in leadership has never been more important. A strong commitment from Government to transparent decision-making and parliamentary scrutiny is vital.

MEDIA RELEASE: HOUSING TEST CASE IN NT SUPREME COURT TODAY COULD SET UNPRECEDENTED LEGAL STANDARDS FOR REMOTE COMMUNITIES

11 December 2019 

Aboriginal people living in remote communities living in appalling conditions in the NT are closely observing the developments of the Santa Teresa landmark test case that will be heard in the NT Supreme Court today. The case could set higher standards of housing, with the potential to break the stalemate and force improvement for remote communities across the NT.

Two members of the Santa Teresa community, Enid Young and Robert Conway will argue that the legal requirement to provide housing that is habitable, extends to a requirement that housing is good enough to live in, reasonably comfortable and humane. Previously the NTCAT ruled that the standard is only that housing be safe, establishing an important, but basic level of protection. A ruling in favour of Ms Young and Mr Conway at the Supreme Court would significantly increase the standard of housing required in remote communities . Ms. Young and Mr.  Conway will also argue that their rental agreements are ‘unconscionable’ (unfair) and invalid on that basis because no-one explained what they were signing up to. If successful, the case could open the NT Government up to further financial liability in relation to rents unfairly collected from residents in other remote communities. 

MEDIA RELEASE: REMOTE ABORIGINAL COMMUNITY WINS SAFE HOUSING IN CLASS ACTION AGAINST NORTHERN TERRITORY GOVERNMENT

27 February 2019

Residents in the Aboriginal community of Santa Teresa will finally be compensated for the NT Government’s failure to maintain housing to a safe and healthy level after the Northern Territory Civil and Administrative Tribunal (NTCAT) found the NT Government is legally obliged to provide habitable housing in remote communities.

The class action lawsuit was brought against the NT Government by 70 households after it failed to action over 600 urgent repairs, with some families waiting over five years. Many houses posed serious health and safety risks to residents, with some building structurally unsound, without running water, sewerage and ventilation despite the desert temperatures in the area regularly hoving above 40 degrees in summer and below zero in winter.

Grata Fund, the public interest litigation fund which financially supported the class action, hails the decision as a victory for the residents of Santa Teresa and all Aboriginal communities that have been systematically ignored by a Government that continues to fail to meet its basic responsibilities as a landlord in the community.

Australian Lawyers for Remote Aboriginal Rights (“ALRAR” have acted for the Santa Teresa residents in the case for over three years free of charge). ALRAR’s lead lawyer, Dan Kelly said, “Aboriginal communities, including the people of Santa Teresa, have fought long and hard to protect their rights while the Government has continued to fail to meet its basic responsibilities as a landlord in the community.   

MEDIA RELEASE: REMOTE HOUSING LITIGATION IN NT SUPREME COURT ADJOURNED

16 October, 2019

Residents of Santa Teresa are left to wait more months for their housing complaints to be resolved following an adjournment of the Supreme Court hearing this morning. 

Dan Kelly, Solicitor for ALRAR said, “The adjournment today means that the Santa Teresa community will now have waited at least 4 years for a resolution since lodging their complaints, for matters which, by law, are supposed to be dealt with quickly. 

“For over 800 years the law has recognised that justice delayed is justice denied. My clients have been left to learn this the hard way.

Walter Shaw, CEO of Tangentyere Council and a powerful advocate for housing in Central Australia said “Aboriginal communities living remotely have been neglected and abandoned by successive Governments for years.

“The adjournment today should not mean that urgent housing matters are not dealt with. Aboriginal organisations want the NT Government to work with them, and residents of Santa Teresa to devolve control, implement housing for health and mitigate the impacts of climate change. 

Lou Dargan, Head of Strategic Litigation at Grata Fund, the organisation that provided the financial backing for disbursements in the case, said “The adjournment today is disappointing, and practically, will mean that residents of Santa Teresa, and other remote NT communities  will have to live in uncertainty and appalling conditions for longer.” 

MEDIA RELEASE: LANDMARK REMOTE HOUSING LITIGATION REACHES THE NT SUPREME COURT

15 October 2019

Aboriginal people living in remote communities living in appalling conditions in the NT are closely observing the developments of the Santa Teresa landmark test case that will be heard in the NT Supreme Court tomorrow. The case could set higher standards of housing, with the potential to break the stalemate and force improvement for remote communities across the NT.

Two members of the Santa Teresa community, Enid Young and Robert Conway will argue that the legal requirement to provide housing that is habitable, extends to a requirement that housing is good enough to live in, reasonably comfortable and humane. Previously the NTCAT ruled that the standard is only that housing be safe, establishing an important, but basic level of protection. A ruling in favour of Ms Young and Mr Conway at the Supreme Court would significantly increase the standard of housing required in remote communities . Ms. Young and Mr.  Conway will also argue that their rental agreements are ‘unconscionable’ (unfair) and invalid on that basis because no-one explained what they were signing up to. If successful, the case could open the NT Government up to further financial liability in relation to rents unfairly collected from residents in other remote communities.

NEW “ESPIONAGE” LAWS COULD CAPTURE THE CRITICAL WORK NGOS AND ADVOCATES DO IN HOLDING OUT GOVERNMENT TO ACCOUNT

Click here to view the original article published by the Sydney Morning Herald, June 26, 2019

Today, for the first time ever and in a demonstration of unity, ABC, News Corp, and Nine Entertainment executives will speak at the National Press Club about freedom of the press.

This is a hot issue in the wake of the AFP raids on the ABC and the home of journalist Annika Smethurst. But the curtailing of democratic freedoms is bigger than the press. New “espionage” laws could capture the critical work NGOs and advocates do in holding our government to account.

Changes to espionage laws passed in 2018 - and backed by both major parties - criminalise dissent. These laws could be used to target think tanks and other NGOs whose advocacy is unflattering to the government of the day.

Protesters at the ABC in Sydney during the AFP raid - Dominic Lorrimer

The laws are dangerous and undemocratic. They make it a crime to publish information that could prejudice Australia’s national security if the publisher is reckless in assessing the potential national security risk. This might not sound shocking but the devil is in the detail. The definition of “national security” goes beyond the usual concepts of defence and counter-terrorism, extending to Australia’s international political or economic relations. That broad definition could capture reporting or advocacy on Australia’s export or import commodities, like iron ore, coal, gold, natural gas and even education.

Making the new laws even wider in application, information does not have to be classified, nor does it have to be leaked from a government source. That is, the laws don’t just target spies and whistleblowers, they criminalise publication of any sensitive information. The penalties are severe - some as high as 25 years or life imprisonment.

Today the Federal Court of Australia will hear the case from Wangan and Jagalingou Traditional Owners who oppose the Adani Carmichael mine development on their lands.

Adrian Burragubba and Wangan and Jagalingou community members represented by the W&J Council have been challenging the Adani mine for four years through the courts and were almost prevented from having their current appeal heard because of the huge financial barriers to people seeking to hold corporations accountable in Australian courts.

“The story of the Wangan and Jagalingou community and Adani is part of a broader story in Australia, where many First Nations communities are prevented from accessing their rights because of  the huge expense involved in bringing important public interest cases to court, and the massive imbalance in financial means between these communities and the corporations they are seeking to hold accountable  under the bright lights of court,” said Isabelle Reinecke, Founder and Executive Director of the Grata Fund.

Upon application for hearing the appeal in  the Full Federal Court, Justice Robertson said he believed Mr Burragubba and his co-plaintiffs do have a case to be heard. Despite this, Adani asked the court for a guillotine order forcing Adrian and his co-plaintiffs to provide $160,000 as surety before the case was heard. Justice Roberts reduced this and ordered the five appellents  pay $50,000 into court within a matter of weeks or drop the appeal. Still too much for the community to cover alone, Grata Fund was able to step in and provide the $50,000 required within hours of the deadline.

THE HIGH COURT UPHELD LAWS THAT ESTABLISH 150 METRE SAFE ACCESS ZONES AROUND ABORTION PROVIDERS IN VICTORIA AND TASMANIA APRIL 11 2019

Yesterday morning, in a victory for women, the High Court upheld laws that establish 150 metre safe access zones around abortion providers in Victoria and Tasmania. Similar laws exist in NSW. The decision affirms women’s rights to access reproductive healthcare free from unwelcome interventions by anti-abortion activists. Australia’s highest court has recognised that the protection of women’s dignity in accessing health services is a legitimate purpose for the laws to address.

That is something to celebrate. But, notwithstanding the progress towards reproductive justice that the decision represents, aspects of the court’s reasoning are problematic.

In 2016, an anti-abortion activist, Ms Clubb, approached a couple attempting to access an abortion clinic in East Melbourne, spoke to them, and attempted to hand them a pamphlet discouraging abortion - in breach of the Victorian law. When she was charged she argued the law was invalid because it infringed the constitutional implied freedom of political communication. This freedom extends to communications on “governmental and political matters”. If a law restricts communications on such matters, the court will have to consider if the restriction is justified.

While the majority of the court ultimately decided that the laws in Victoria and Tasmania are justified, the court did not decide whether Ms Clubb’s communication was, in fact, political. Three of the seven judges accepted that the conduct was not political. They accepted that Ms Clubb’s conduct was directed solely at dissuading the woman from having an abortion, and was not addressed to law or policy makers, and did not seek to influence a vote. The communication was about moral and ethical choices by an individual, not political choices by the public.

Six Minutes with Isabelle Reinecke, Law Society Journal, February 2019

Adani coal mine should be suspended, UN says, until all traditional owners support the project

The United Nations has asked the Australian Government to consider suspending the Adani project in central Queensland until it gains the support of a group of traditional owners who are fighting the miner in court.

A UN committee raised concerns that the Queensland coal project may violate Indigenous rights under an international convention against racial discrimination if it goes ahead, giving Australia until April to formally respond.

Meanwhile, a public interest legal fund backed by former corruption fighter Tony Fitzgerald has stepped in with financial backing for a federal court challenge to Adani by its opponents within the Wangan and Jagalingou (W&J) people.

The Grata Fund, which boasts the former federal court judge as a patron, agreed to pay a court-ordered $50,000 bond so W&J representatives can appeal a court ruling upholding a contentious land access deal secured by the miner.

The UN Committee on the Elimination of Racial Discrimination last month wrote to Australia's UN ambassador to raise concerns that consultation on Adani's Indigenous Land Use Agreement (ILUA) "might not have been conducted in good faith".

These allegations "notably" included that members of the W&J native title claim group were excluded, and the committee was concerned the project "does not enjoy free, prior and informed consent of all (W&J) representatives".

Santa Teresa residents are suing the NT Government over 'decrepit' housing, but it's countersuing, ABC 7.30, Nov 2018

Jasmine Cavanagh has lived in one house for most of her life — a two-bedroom concrete bunker in Santa Teresa, a remote community in the heart of Australia.

At times, it has been a struggle to raise her children in this home. Electrical points were faulty, the roof leaked, and there were major plumbing problems.

During bitterly cold desert winters, she and her partner could not sleep through the night. They were forced to wake up every few hours to clean the sewage and water leaking through their home.

The pair would take turns mopping to stop sewage reaching their bedrooms.

Ms Cavanagh's frustration led her to take an extraordinary step. She is suing the Northern Territory Government over a series of repairs she alleges went ignored for too long.

And she is not alone. Dozens of households in Santa Teresa, 80 kilometres south-east of Alice Springs, have joined this class action against the NT Government and the case is set to go before a tribunal next week.

Commonwealth Bank settles discrimination claim by blind Australians over touchpad devices, ABC 7.30, Jan 2019

Commonwealth Bank has settled a discrimination case in the Federal Court launched by two blind Australians over the bank's customer touchpad terminals.

Nadia Mattiazzo and former disability discrimination commissioner Graeme Innes began the landmark discrimination case against the bank in 2018 over the devices, which are found in thousands of Australian businesses.

Ms Mattiazzo said "there's a community expectation that things should be accessible, and it's a bit of a shock when community comes across something that isn't".

Mr Innes and Ms Mattiazo's case was financially supported by the Grata Fund, a new public interest litigation body set up in Australia.

"People really need to be able to hold corporations accountable to the law in courts, but the financial barriers in Australia are just too high," the fund's executive director Isabelle Reinecke told 7.30.

"It's a massive hurdle for people to bring public interest litigation. If you're facing having to pay a corporation or the government's legal bills if you lose, you're just not going to be able to take that risk on."

CURRENTLY, NSW LAW ALLOWS FOR A PERSON TO BE CHARGED WITH CAUSING GRIEVOUS BODILY HARM TO A PREGNANT WOMAN - AND THAT INCLUDES HARM TO HER FETUS. BUT THERE IS NO SEPARATE CRIME REGARDING THE FETUS, BECAUSE THE LAW DOES NOT RECOGNISE A FETUS AS A LEGAL PERSON, NOVEMBER 16 2018

Living in the United States, I witnessed first-hand the ways that “fetal personhood” laws are used to punish women and police their pregnancies. Although touted as laws to protect women, fetal personhood laws dilute reproductive rights. The impact on women can be severe. So, when I returned to Australia this year, I was disappointed that Zoe’s Law, Fred Nile’s fetal personhood bill, was back on NSW’s agenda.

But I was alarmed when Premier Gladys Berejiklian yesterday announced her government’s support for a law of this kind.

Currently, NSW law allows for a person to be charged with causing grievous bodily harm to a pregnant woman - and that includes harm to her fetus. But there is no separate crime regarding the fetus, because the law does not recognise a fetus as a legal person. “Zoe’s Law” is Fred Nile’s bill to introduce this specific crime. It follows several tragic road deaths, in which heavily pregnant women were killed and/or their fetuses destroyed. If Nile’s bill becomes law, a person who seriously injures a pregnant woman could be charged with harming both the woman and her fetus.

Nile has tried and failed to get this bill up before. He’s faced strong criticism from women’s advocates. Concerns include the law being used to prosecute women or doctors for ending pregnancies (because abortions necessarily involve the destruction of a fetus). The Nationals have proposed amendments to Nile’s bill to exclude abortions from it. Premier Gladys Berejiklian says her government would propose its own version, also excluding abortion, if re-elected.

But, even if abortion is excluded, recognising a fetus as having legal rights that otherwise only apply after birth remains problematic. We only need to look at the recent experiences of women in the US to understand why.

Grata Fund calls for adverse cost reform in submission to Australian Law Reform Commission inquiry, July 2018

The Australian Law Reform Commission's current Inquiry into Class Action Proceedings and Third Party Litigation Funding raises important questions about the role of funders in enabling access to justice in Australia.

Grata Fund's submission to the inquiry makes the case for reform to remove the significant financial barriers that block ordinary Australians from holding corporations and governments accountable in court.

"Until serious reform of our adverse cost system takes place, funders will only be able to scratch the surface of unmet need in our community for litigation funding in cases that protect our human, environmental and democratic rights", says Grata's Executive Director Isabelle Reinecke.

To read more, see Grata Fund's submission here.