“success” — a very subjective term
this post concerns the the reasons why my freedom of expression/human rights defence will go no further, which basically comes down to the way the word “success” is understood.
i had to go to justice connect (formely the public interest law clearing house) to get pro bono assistance to take the appeal further, to appeal the decision of the supreme court to the victorian court of appeal — for many reasons: i don’t know the process for a further appeal and don’t know anyone confident enough to advise me; self-representing litigants are looked down on, less likely to be granted “leave to appeal” by the courts; and the basic and obvious reason that my case would benefit from someone with a good understanding of the legal intricacies involved.
some time after putting details of my case in with justice connect, i received a phone call from a very nice, intelligent and well-spoken human rights lawyer, whose task it was to assess this case for justice connect so that they could determine its suitability for pro bono representation — this assessor explained to me the facts as they saw them, after taking the time to look into the case at some depth, which i of course appreciated.
ultimately they arrived at a fair assessment, in my non-professional and highly biased opinion — they thought the case had some merit in terms of grounds for appeal, the definition of “public order” (disastrously broad and without reference to authority) for instance, but that even if we got a more decent definition for public order, meaning the expression would survive the limitation of section 15(3), it would then be hard to find a judge who wouldn’t just knock the expression down on the back of the broadly worded section 7(2). then even if we did get past section 7(2) (which i think there is very good arguments for) we would still be facing some opinions from the high court that say that the “declaration of inconsistent interpretation” made to parliament is not to be done in “criminal” matters (who the fuck knows why, the high court judges themselves didn’t feel they had to explain, presumably it’s because they’re hysterically afraid of rapists and mass-murderers getting away scot-free like justice kyrou).
anyway, my prospects of “success”, i.e. winning the case and having my conviction overturned, were deemed to be very low, which is fair enough, considering the extremely conservative nature of our justice system — i ‘d even say they are as low as 0.something %
from there (from this report of a human rights lawyer saying my chance of “success” was low) i was told it would probably be decided (not by the assessing human rights lawyer, but by some other justice connect functionary) that i’m not worth the pro bono time of human rights lawyers who can only do so much free work — so i understand “justice connect” would not have even passed details of my case out to legal firms who do pro bono representation, “justice connect” effectively deciding for every legal firm that i wasn’t worth their time.
needless to say, despite fully understanding their reasoning, i am still very disappointed, as i will now explain:
the idea of “popular litigation”, only running cases highly likely of achieving complete legal victory (what lawyers call success), leaves out many important reasons to run cases that i think human rights lawyers should be responsive to — i.e. principles (those silly little things that gave birth to the human rights charters in the first place) — and “popular litigation” also gives cases with a slim chance of success absolutely zero chance by refusing to run them in the first place.
ultimately, lawyers are taking the conservative interpretations likely to be made, and making those dead certainties, enforcing those themselves — they also seem to be ignoring the fact that human rights cases are often more successful the higher up the court system they go — i mean who is to say this freedom of expression case couldn’t end up in the high court, and even over-turn the decisions in momcilovic about the constitutionality of “declaration[s] of inconsistent interpretation” — no one — it’s possible, if you actually try, not likely, but possible.
this isn’t the first time this has happened to me, supposed champions of human rights advising against taking my case any further, even though it’s the best defence available to me on the course of action that i have decided for good reason is non-negotiable civil disobedience — both times i have had an appeal case decided on in the supreme court the opinions of human rights champions have been there shortly afterwards to prevent my case from going further to the court of appeal — thank you very much human rights champions, now i’ll sit in jail for sure.
my concept of “success” is simply to run the case on principle, make power address these questions, say the ridiculous things they must to defeat our arguments, get attention to the issue i’m trying desperately to raise (which further appeals in higher courts would definitely do) — and when there is enough reason for “leave to appeal” to be granted, which has been the case both times, that’s exactly what should happen — it is very annoying that my ability to do this is contingent on a professional class of timid and well-paid ‘liberals’ who think winning is everything, and who are satisfied with what they can do, which is absolutely nothing in terms of approaching the core of the problems we face as a species.
instead of seeing my case as a rare opportunity to work on the case of someone trying to address the media crisis our democracy has suffered for generations, which is supporting a political/economic hegemony that is taking our civilization toward collapse, they instead see something bad for their career, something personally embarrassing, something bad for the future of our toothless charter which is now earnestly attempting (without much success) to rearrange chairs on the titantic — i’m sure their great grandchildren, malnourished and witnessing their crops being smashed again by our wild climate, will say, “well at least my great grandparents didn’t jeopardise their professional reputations or the human rights charter of the now defunct victorian legal system in some vain effort to prevent all this”
even the most intelligent of us often fail to understand the true nature of what we’re up against here, fail to grasp the enormous political/economic change that is absolutely necessary for any real semblance of global justice, human rights and sustainability — why can’t these liberals see that they are actually being deeply conservative when they choose only to aim as high as what they define as “politically possible”, that they are just accepting as unchangeable things that must change for true “success” to be possible? — i feel so constantly disappointed and heart-broken by the actions of apparently intelligent, educated people — it’s as if their education and social promotion has really only acted to condition their minds to reject reality.
so much of the time i believe there is no reason for hope, except that it is the only thing that can sustain me.
of course i’m going to keep trying, keep hoping we’ll rise to fight the actual fight, instead of busying ourselves with the feel-good “best we can do”‘s (which are really “why bother”‘s) — i just expect to have my heart broken again and again, and i’m really sick of the pain :( (boohoo)
it’s not enough that i’m disappointed that this educated class will risk nothing, will carry out no actions apart from their professional and fully legal actions that risk nothing and will therefore never gain anything even close to good enough — they have to stand in the way of my actions (or the legal components thereof) by preventing me from speaking to a system that doesn’t want to hear from non-professionals with the audacity to act and speak to the real issues.
what am i to do in this position? being fully aware that expressing my disappointment and real opinions about what educated, developed-world liberals are doing and not doing could cause these “educated, developed-world liberals” to dismiss me even further?
i’m just going for honesty — this is how i feel, if anyone is going to reject a line of reasoning because it upsets their apple cart, they were probably going to do that anyway — in fact they are doing that right now: this line of reasoning would be obvious to them by now if their minds weren’t already shutting out such realisations.
so now i’m left with the “extraordinary emergency” defence — a defence in which i would again benefit from the help of educated liberals in the form of expert witnesses, both to confirm climate change is an emergency and also to tie the political inaction on climate change to the prevailing neo-liberal political/economic order, something which the for-profit media enables and cements — i might have to go down to their offices and bail them up to get listened to, hahaha, i’m actually not even joking.