The Bush Lawyer's Guide to

Avoiding and Surviving Litigation Against Public Participation

Defamation Commercial Torts Trade Practices Abuse of Process

A Guide for Political Activists by Dr Greg Ogle

Surviving Suits

A Guide for Political Activists

What you might get sued for

Avoiding defamation suits

Protest risk minimisation

Responding to legal threats

Further information sources

Law Reform

Sport! Having fun with litigation

Being a Bush Lawyer

Bush Lawyer Awards

Threatening Wallpaper

Bush Lawyer Cases & Politics

GAGGED: The Gunns 20 and other law suits

Beating a SLAPP suit: Animal Lib SA

Gunning for Change: The Need for Public Participation Law Reform

The Gunns Case: Chilling the Environment Movement

Bruce Donald summarises a number of cases of "Defamation Against Public Interest Debate"

Hindmarsh Island - early days

Approaching the Court

 

This website is authorised by Greg Ogle on behalf of Bush Lawyers Ink, a not for profit legal service brought to you by the legal system's inability to protect the community's right and ability to participate in public debate and protest.

 

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.

 

Remember the bush lawyer's golden rule

Be careful, not silent

Note: This website is inactive and not being maintained. You are welcome to whatever is useful, but no guarantees that it is up to date.