Thursday, August 20, 2015
When Prime Minister Abbott used the term "lawfare" to describe the reasons for proposed changes to the Commonwealth Environment Protection and Biodiversity Conservation Act 1999, my first reaction was to think that he had defined a new term following his usual desire for simple slogans. The last may be true, but lawfare (while a recent term) has a considerable history.
I like the term. I first came across lawfare in commercial law and especially in the intellectual property arena where big companies were able to use legal processes to steamroller smaller competitors who could not afford to fight the cases. The legal grounds used were often spurious or at least dubious. That did not matter. All that was required was an apparent case with the aim of out-lasting the smaller company. As often happens, processes created for one purpose had unforeseen side effects, as in the rise of patent trolling.
If you look at the Wikipedia article on lawfare, link above, you can see how the use of the term has, to a degree at least, become entrapped in varying ideological and political stances. While we can all think of examples of lawfare, the term is actually quite difficult to define. Simplifying, lawfare involves the deliberate use and manipulation of the law and legal processes by individuals, organisations and indeed governments to achieve objectives that are independent of the intent of the law or legislation.
In this sense, I find lawfare a useful and indeed interesting term.