Would You Chip-In for a High Court Challenge Against Unfair Laws?

Do you need to go to court but can’t afford to pay for a lawyer?

How about posting your cause online and asking people around the world to donate?

Affordability of justice

Many Australians would struggle to pay expensive legal fees if they needed to go to court. The wealthy have no problem, and only the most disadvantaged can hope to get Legal Aid.

There is no guaranteed right to legal representation in Australia, which leaves most people in the middle struggling to afford a lawyer.

What is crowdfunding?

This is a common phenomenon in many countries, so a new model for financing legal fees has emerged: “crowdfunding”.

Anyone who believes in a cause, but needs money to fund it, can seek donations through crowdfunding. One person has even set up a crowdfunding campaign to pay off Greece’s €1.6 billion debt.

Crowdfunding for court cases

Once upon a time, it would have been an offence to employ crowdfunding to pay for litigation.

Indeed, it wasn’t too long ago that interfering with someone else’s court case, including encouraging or paying for it, was against the law. But now, the common law offences of maintenance and champerty have been abolished by Schedule 3 of the NSW Crimes Act 1900.

Maintenance was essentially when a person who is not involved in the case encourages another person (including by supplying funds) to commence or continue legal proceedings. Champerty was where the party to a dispute agreed to share any proceeds they ultimately obtained with the person financing them.

Platforms for casefunding

Casefunder.org is a platform set up by Anita Silverman due to her frustration with the justice system.

She explains on the website about how she poured savings, as well as her heart and soul, into her dream of creating a themed pet zoo for children’s birthday parties – until an abattoir moved in next door and started dumping toxic chemical waste onto her property.

She has taken to the Internet, asking people to help her raise the funds to take the matter to court.

Also in its early stages, a US platform called LexShares allows litigants to crowdfund cases. Unlike casefunder.org, this organisation allows those who fund an applicant to receive a portion of the proceeds if they win.

Why would others want to get involved?

Many choose to donate out of a genuine desire to help people reach their goals or overcome injustice.

And winning a High Court case can affect many more than simply the parties involved.

Our High Court has the power to overthrow unconstitutional laws, or to clarify unclear provisions in legislation. Crowdfunding may be a way for unjust laws to be overturned if the people directly affected cannot afford to take their case to the highest court in the land.

Getup!, an Australian grassroots activist campaign, recognised this even before the era of crowdfunding. The group took the cases of two young people up to the High Court in order to knock down the Howard government’s changes to the Electoral Act. The ‘Getup! case’ as it came to be known, allowed 100,000 more Australians to enrol after the original cut-off date.

Getup! relied on public donations to financially support the plaintiffs up to the High Court in 2010.

Quite apart from these altruistic motives, there is the potential for donors make money if a positive result is achieved in court, akin to making their support of a litigant a kind of ‘investment,’ as is the case with LexShares.

What about criminal cases?

The focus of crowdfunding is predominantly on helping plaintiffs bring civil claims, but in theory the model could equally be used in criminal cases.

Defendants charged under unconstitutional laws may not have the funds to take a case all the way to the High Court ,where the law could be overturned. Even if a defendant in a criminal case believes they would have a shot in overturning a conviction if the case went to the High Court, he or she may simply not be able to afford it.

Is crowd-funding a good or bad idea?

Some have raised concerns that the crowdfunding model could encourage frivolous lawsuits, which is exactly what the previous laws banning this kind of behaviour were intended to do.

Cases that would have otherwise been settled out of court or dropped would now be an added burden on an already clogged court system.

The founders of LexShares deny that this is the case, as they vet potential causes of action before making them available for investment.

Recent Australian laws that make it a criminal offence for people who work in detention centres, including doctors, to speak out about human rights abuses could be perfect for crowdfunding. If a doctor, for example, were charged with a criminal offence for speaking out, crowdfunding might be a way to fund the case all the way up to the High Court – where the question of whether the law contravenes the right to freedom of political communication could be determined.

The same could be said about laws that make it a crime to speak out about unjust ‘anti-terrorism’ raids. Late last year, 800 police officers were involved in raids in the middle of the night on a dozen homes in Sydney and Brisbane. Only one person was charged with any form of offence.

Many families were terrorised during the raids, yet it is a criminal offence for them to speak out, and it is also a crime for journalists to publish information about the raids themselves – no matter how unjustified and heavy-handed they might have been.

Crowdfunding could allow those charged for speaking-out to challenge the constitutionality of their prosecution in the High Court.

Crowdfunding is relatively new in Australia, and only time will tell whether the model will be used in the interests of justice, rather than just profits.