The United States Supreme Court overturned racial segregation in schools in 1954. In the Miranda decision in 1966, it held that police had to remind suspects of their right to silence and to a lawyer. Last month, the court unanimously ruled that police could not search suspects’ mobile phones without a warrant.

These wins have something in common: the American Civil Liberties Union had a hand in all of them.

More recently, the ACLU has challenged the NSA’s phone surveillance, the use of drones, racial profiling, and a range of other civil liberties problems. Only the department of justice appears more frequently in the US supreme court.

With an office in every state, 100 lawyers on staff and 2,000 more volunteering every year, the ACLU takes on 6,000 cases annually. It is assisted by 500,000 members and a budget of over US$100 million. It is a highly organised and generously funded machine, fighting to safeguard Americans’ rights.

We do things differently in Australia. We have no wide-scale, systematic protection of civil liberties in our courts. Instead, we rely on a small and scattered band of goodhearted solicitors and academics, often working pro bono alongside their day jobs, and a few public interest law groups.

Civil liberties organisations focus their energies on public advocacy, like media releases and submissions to inquiries. Funding cuts to community legal centres make even this more difficult. It is almost impossible for groups like the Environmental Defenders’ Offices, which have undertaken significant public interest litigation in the past, to continue.



There are reasons why we don’t have the same culture of defending civil liberties in courts as America does. Our constitution offers scant protection of human rights, and so we have to be more creative about challenging laws and decision-making. In America, it is easier for an organisation like the ACLU, not directly affected by a case, to make arguments to the court.



These differences don’t insulate Australians from threats to civil liberties. Indeed, without a bill of rights we are even more vulnerable than Americans. And this is an anxious time for civil libertarians.

The surveillance state swells: Asio is calling for a mandatory data retention program, and George Brandis may pursue retrospective legislation to prosecute Australians returning from overseas conflicts.

In Queensland, bikies are prevented from meeting. Governments drag their feet on freedom of information requests and the Commonwealth has proposed an overhaul of laws governing access to government information.

We should be concerned about growing police powers and the erosion of the right to protest. The Commonwealth’s treatment of refugees shows that it is happy to test (and exceed) the bounds of government power.

We know that public interest litigation can work. Refugee lawyer David Manne has been relentless in curbing government excess. In 2011 he challenged the Gillard government’s Malaysia solution. The high court’s full bench held that it was unlawful. Suddenly, if temporarily, offshore processing was scuttled.

Manne had another high court win last month. The court held that Scott Morrison did not have the power to set a cap on the amount of permanent protection visas granted each year.



Litigation does not have to be successful to be worthwhile. The rule of law means that before a court, a government is a party just like any other, bound by the judge’s decision; open justice means that the public has access to information revealed in the courtroom. "Operational matters" or "government policy" excuses do not fly as a defence.



The current challenge to the return of 157 asylum seekers to Sri Lanka aptly demonstrates the power of courts. Before human rights lawyers approached the high court, the government had not even confirmed that those people existed. The stark facts that we have learned about this case only came about through the dry processes of directions hearings, documents, and submissions.



Going to court won’t always work. Often the law and justice are not synonymous. Even if a challenge succeeds, governments will try to work around it. But litigation is one of the most powerful tools to defend civil liberties. If we want to take protecting our basic freedoms seriously, now is the time to amp up the fight and take it to the courts with an organised army of lawyers. We could use an Australian Civil Liberties Union.