Law Reform
While this website is largely about advice for community activists facing
litigation, but in the long run we not only need to have sport and fight back in
each law suit, we also need law reform to protect the community's rights and
ability to participate in public debate and political protest. Over half the
jurisdictions in the United States have some form of "anti-SLAPP" legislation to
protect ordinary peaceful political activity from the threat of civil
litigation, and such law reform is long overdue in Australia.
There are three broad avenues for law reform:
- a Human Rights Charter which applied to civil litigation, while not
providing a defence or a mechanism for striking out cases, would at least
give some (often much needed) guidance to judges and ensure that what was
under consideration was not just the property rights of those suing, but
also the public's right to protest.
- reform of the Commonwealth Trade Practice Act to give exemption
from its punitive provisions for all acts of public participation. (There
are existing exemptions from some provisions around "interference with
trade" for environmental and consumer protection activity).
- state anti-SLAPP legislation to allow for early strike-out of cases that
impinge the right to public participation. The ACT was the first
jurisdiction in Australia to introduce such legislation,
The Protection of Public Participation Act 2008, but the original
bill that was introduced by the Greens was heavily gutted by the government
and it is a bit of a dud.
These law reform options are spelled out more fully in GAGGED: The Gunns 20
and other law suits, but the provisions for a possible anti-SLAPP
bill are set out below (based on
a model developed in Victoria by the Public Interest Law Clearing House).
Model anti-SLAPP legislation
A Bill for an Act to Protect and Encourage Public
Participation
Section 1 -
Short Title
Section 2 -
The Purposes of the Act
Section 3 -
Definitions
Section 4 -
The Right to Public Participation
Section 5 -
Application for Declaration as to Public Participation
Section 6 -
Application for Dismissal
Section 1
– Short Title
This Act may
be cited as the “Protection of Public Participation Act of 2010”.
Section 2
– The Purposes of the Act
The
purposes of this Act are to:
(1)
protect and encourage public participation and to dissuade persons from
threatening, bringing or maintaining proceedings or claims that constrain public
participation; and
Section 3
- Definitions
In this Act:
“applicant” means a person who
brings an application pursuant to Section 5 of this Act ;
“defendant” means a person
against whom a proceeding is brought or maintained;
“government body” includes a
federal, state or a local government body or instrumentality, and any branch,
department, agency, official, employee, agent, or other person with authority to
act on behalf of the federal, state or a local government and includes any body
appointed or established by, or from which advice is requested by, a federal,
state or a local government;
“improper purpose” - for the
purposes of this Act proceedings will be taken to have been commenced or
maintained for an improper purpose if, when viewed on an objective basis, a
purpose for commencing or maintaining the proceedings is:
(a)
to discourage the defendant (or any other person) from engaging in public
participation;
(b)
to divert the defendant’s resources away from the defendant’s engagement in
public participation; or
(c)
to otherwise punish the defendant for engaging in public participation.
“proceeding” means any action, suit, matter, cause, counterclaim, appeal or
originating application that is brought in any court or tribunal, but does not
include a prosecution for an offence or a crime;
“public participation” means
communication or conduct aimed, in whole or in part, at:
(a)
influencing public opinion; or
(b)
promoting or furthering action by the public, a corporation or by any government
body,
in relation
to an issue of public interest.
Public
participation does not include communication or conduct to the extent that such
communication or conduct:
(i)
contravenes an order of a court or constitutes contempt of court;
(ii)
constitutes vilification or discrimination based on race, sex, sexuality,
ethnicity, nationality or creed (per relevant State or Commonwealth
legislation);
(iii)
constitutes a deprivation of liberty;
(iv)
constitutes a trespass to premises used primarily as a private residence;
(v)
intentionally or recklessly causes appreciable injury to tangible property that
lowers its value;
(vi)
intentionally or recklessly causes physical or mental injury to natural persons;
(vii)
incites others or attempts to incite others to commit an act referred to in
sub-sections (i) – (vi) above;
(viii)
is by a party to an industrial dispute between an employer and employee, former
employee, contractor or agent and relates to the subject matter of the dispute;
or
(ix)
is made in trade or commerce.
Section 4
– The Right to Public Participation
(1)
Every person has the right to engage in public participation.
(2)
The right contained in section 4(1) does not provide a defence to criminal
liability.
Section
5 – Application for Declaration as to Public Participation
(1)
Where threats of proceedings are made in respect of a person’s communication or
conduct, that person may bring an application before the Magistrates’ Court for
a declaration that the conduct complained of is public participation.
(2)
At the hearing of the application the applicant must, on the balance of
probabilities, demonstrate to the Magistrates’ Court that the communication or
conduct of the applicant constitutes public participation.
(3)
Where the applicant satisfies subsection (2), the Magistrates’ Court may, having
regard to the purposes of this Act, issue a declaration that the communication
or conduct complained of is public participation.
Section
6 – Application for Dismissal
(1)
A defendant against whom a proceeding is brought or maintained may bring an
application under this section for an order to dismiss the proceeding or a claim
within the proceeding.
(2)
When an application is brought under subsection (1) all further applications,
procedures or other steps in the proceeding are, unless the court otherwise
orders, stayed until the application has been heard and decided.
(3)
Where a court is satisfied that conduct alleged against the defendant
constitutes public participation, the court may, having regard to the purposes
of this Act, make an order dismissing the proceeding or any claim within the
proceeding, which is founded on that alleged conduct.
(4)
The court may, on application by the defendant or on its own motion, make an
order for punitive or exemplary damages if satisfied that the proceedings or
part of the proceedings were, when viewed on an objective basis, commenced or
maintained for an improper purpose.
(5)
For the purposes of this section 6, a reference to a court is a reference to the
court or tribunal in which the proceeding is brought.
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