I also have it on very good authority that the Blue Wedges lawyers were, to put it politely, incompetent nincompoops, far better at drafting a(n erroneous) media release than a legal argument.

The Federal government had plenty of triggers through the EPBC Act, and no obvious bias, yet they were happy to let dredging through.

Blue Wedgie
Last week the Blue Wedges coalition approached the Supreme Court to challenge the legality of the government’s “trial” dredging of Port Phillip Bay. Blue Wedges allege that the dredging is in breach of the government’s own laws, particularly because it is being conducted without any environment effects statement. Section 6(2) of the Environment Effects Act requires that “no works” be carried until the EES has been considered by the Minister. 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 could be finished, and there would be no point in the Court ruling on the controversy.
For this reason, the Blue Wedges coalition asked the court for an interlocutory 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
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something so you can bring a case, you must 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 would not excuse them from this requirement, and accordingly would not grant the injunction.
Whatever you think of the merits of dredging Port Phillip Bay, the Blue Wedges case highlights an important gap in our rule of law. If the government is acting unlawfully in this trial dredging, surely the rule of law requires that it be held to account. But how?
The common law assumes that private individuals only take court action 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 now 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
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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 has an interest. He is also the Minister for Planning, who administers the environment effects process. He has made public pronouncements in support of the trial dredging. He is 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.
In 1972, when the Attorney-General of Tasmania, Mervyn Everett, gave his fiat to conservationists to challenge the lawfulness of the flooding of Lake Pedder, he refused to accept a cabinet directive to stop the litigation. The
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Premier, Eric Reece, sacked him and assumed the office of Attorney-General himself. The courts were not permitted to decide…

Sorry about the length, but you see the problem here? On the one hand corporations are allowed to bring suits against their opponents because of direct action, yet when an activist organisation tries to bring an action through the “proper channels” they get SLAPPed just the same.

Oh, you should have come on in, the water at Willi Beach was fine this summer. I would be far more worried about the stormwater outfall smack bang in the middle than any fanciful dredging effects.

O/T – We haven’t swum at Willi beach this summer as we usually do as we don’t know what might have been stirred up from the depths by the dredgers. Sure it might be OK, but I don’t trust the Port of Melbourne Authority to give an honest answer as to its safety. / O/T

But the Blue Wedges Coalition – I don’t know what the specifics of the claimed Vic Government SLAPP are (and that link’s broken for me), but I’ve seen a lot of their arguments, and they are in many cases completely loony tunes. At some stage, having had a LOT of time spent on them, and well after they’ve exhausted all reasonable lines of attack, and without broad public support (which they never got), they have to be told to go away and stop wasting the courts and the tribunals time.

I just looked on the Blue wedges website, and found no claim of a SLAPP – all I could see was that costs were awarded against them in a court case. Are you really trying to say this is equivalent?

Really hope it ends for the remaining 6 soon.

I’d love to see that post, because it’s an interesting and relevant discussion. The Hanson photos combined with the Brennan Affair give a good start to two ways of looking at it. The blurring lines between bought media and citizen journalism make it even more interesting.

On the one hand, some kind of formal indemnity for journalists would be better than the current conditional “p*lice discretion” approach, but on the other hand the tabloids would queue up to be the first to use it to defend the indefensible (“Nicole Kidman giving birth: we have the photos!!!”). There’s also questions about defining “media” – can a protester whip out a camera to avoid arrest? Does someone from the bought media become liable for arrest if their camera breaks down?