Legislative Assembly for the ACT: 2005 Week 08 Hansard (Wednesday, 29 June 2005 2005) . . Page.. 2413 ..
and community activism. In turn, his legislation is based on successful North American legislation. By way of background, Brian Walters is a Melbourne barrister. He is Vice-President of Free Speech Victoria, and Vice-President of Liberty Victoria. He stood as a support candidate for the Victorian Greens in the November 2004 City of Melbourne council election. He has assisted many forest activists who have been forced to face the courts for breaking laws designed to exclude them from, for instance, logging coupes.
Also, at this early point, I will point out that a key intent of anti-SLAPP legislation relates to defamation law. However, we have taken the defamation section out of this particular bill as it is addressed in part by the exposure draft currently before the Assembly. I foreshadow that I will be seeking changes to that bill to strengthen anti-SLAPP measures. However, we still need this legislation to provide broader protection to public participation. For example, there is a range of law under which SLAPP litigation can arise, such as economic torts, contract law, trade practices, fair trading provisions and even the law of conspiracy. Fundamentally, though, this bill is about democracy.
The ACT Greens put forward this legislation because we have a longstanding commitment to protection of the community’s right to participate. But this is not just a Greens issue. In fact, I would say that all members in this chamber have been motivated by concern that members of the community have the right to get involved in a range of activities without fear of retribution, physical, financial, or legal.
The Court Procedures (Protection of Public Participation) Amendment Bill 2005 aims to encourage public participation by protecting the right of the public to participate in social and political activity on a range of issues. It aims to protect the right of the public to act in support of social, community and political causes without fear that they will be attacked through the courts by spurious but nonetheless debilitating court action. The bill does this by allowing a defendant to apply to the court to have a case dismissed if it intervenes with public participation; there is no reasonable expectation of the case succeeding or the intent of the case is to silence public participation, to divert resources from public participation to legal proceedings or penalise for engagement in public participation. Where a case is dismissed on such grounds, the court may order the plaintiff or the person who started that court process to pay costs and damages to the defendant.
Public participation is defined as publication or conduct aimed at influencing public opinion on issues of public interest. It does not include unlawful behaviour. Over recent years there has been a worrying development where parties, particularly corporations and institutions, seek to suppress public participation thorough the use of the courts. These legal actions have a secondary objective. They can serve to dissuade and distract members of the public from continuing to campaign on the original issues. As one commentator states, “They ‘win’ the court cases when their victims are no longer able to find the financial, emotional or mental wherewithal to sustain their defence.” They win the political battle even when they lose the court case if their victims and those associated with them stop speaking out against them. The term strategic lawsuits against public participation, or SLAPP, was defined by Penelope Canan and George Pring, who are academics at the University of Denver in the United States.