By Esther Faine-Vallantin

In the absence of a Bill of Rights or strong legal protections for free speech in Australia, Human Rights Defenders can face legal proceedings that aim to silence them.

RAP’s 2016-2017 Equality and Government Accountability team worked on advocating for an Australian National Action Plan on Business and Human Rights, with a focus on protecting Defenders. As a team member, I was lucky enough to meet with Hollie Fifer, director of The Opposition, and speak with her about her experiences making her film and defending it against business interests in the courts.

How the film came about

In 2012, Fifer travelled to Papua New Guinea to make a documentary about Australian expat and PNG politician Dame Carol Kidu. While staying in Port Moresby with Dame Kidu, Fifer learned of the Paga Hill community.

Over four generations, the Paga Hill settlement became 3000-person strong. However, the future of the community was threatened when an Australian-run company, the Paga Hill Development Company, sought to develop the area into a luxury precinct to be used for the 2018 Asia-Pacific Economic Cooperation forum. The development plans included demolishing the informal settlements at Paga Hill and resettling the inhabitants at an industrial waste site.

A subset of the Paga Hill community, led by Joe Moses, pushed back against these plans. They challenged the lawfulness of the development and attempted to have demolition delayed until the court had made a decision. They also protested regularly on the Paga Hill site. Dame Kidu, initially an advocate and supporter of the protestors, introduced Fifer to Moses and the Paga Hill community.

On 12 May 2012, before the lawfulness of the development was judicially determined, PNG police came to one of the Paga Hill communities to commence demolition. They were equipped with bulldozers and assault rifles. They burned down people’s houses, and assaulted and opened fire on protestors. Fifer was onsite and filmed the human rights abuses as they occurred, capturing footage for what would eventually become The Opposition.

In July 2012, Dame Kidu retired from politics and set up a consultancy firm. Two years later, she was hired by the PHDC to work on the relocation of the Paga Hill community. At the same time, in around October 2014, The Opposition had started to gain traction and had garnered financial support through GoodPitch and Screen Australia.

The Opposition Trailer – 2016 from Media Stockade on Vimeo.

The legal challenge

In an attempt to distance herself from her previous criticism of the Paga Hill development, Dame Kidu and her new employer sought to undermine The Opposition and prevent its release. Dame Kidu revoked her consent for the use of all footage featuring or facilitated by her, which included footage showing the human rights abuses.

In March 2016, six weeks before The Opposition‘s world premiere at the prestigious Hot Docs festival in Canada, Dame Kidu took legal action in the form of a strategic lawsuit against public participation (also known as a SLAPP suit). In the proceedings, which were funded by the PHDC, Dame Kidu alleged breach of contract, promissory estoppel and unconscionable conduct against Fifer.

Dame Kidu was successful in obtaining a temporary injunction to prevent Fifer from using the impugned footage. Not wanting to cancel the film’s premiere, Fifer and The Opposition team were forced to redact entire chunks of the film by blacking them out and replacing them with narration. Following the screening, three PHDC executives contacted the production company claiming to have been defamed and threatening to sue if screenings did not cease.

The PHDC’s SLAPP suit temporarily infringed on Fifer’s freedom of speech and hindered her work as a Defender. Thankfully, the case of Kidu v Fifer was ultimately decided in Fifer’s favour in July 2016. The Court found Dame Kidu’s story lacked credibility, and commented that the legal action appeared to have been motivated by a desire to protect her own reputation and that of the PHDC from their negative portrayal in The Opposition.

Despite the threat of defamation proceedings, Fifer and the The Opposition team persisted and have succeeded in sharing Joe Moses and the Paga Hill community’s story with the world.

Where to see The Opposition

The Opposition will have its Australian premiere and open the Human Rights and Arts Film Festival in Melbourne on Thursday 4 May. To mark this special occasion, Hollie Fifer and Joe Moses will introduce the film. The film will also screen in Canberra and Brisbane. Buy tickets, and view the rest of the HRAFF program here.

Read RAP’s briefing paper for the UN Special Rapporteur on the situation on Human Rights Defenders here and the Special Rapporteur’s end of mission statement here.