Legislative Assembly for the ACT: 2008 Week 04 Hansard (Wednesday, 9 April 2008) . . Page.. 1171 ..
to do their business without improper hindrance”. Commercial interests have a plethora of legal weapons at their disposal, including various torts and trade practices actions. They also have greater access to sympathetic media coverage and tax deductibility for their legal expenses.
The public does not have any legally protected right to protest. People take their chances when they choose to participate in acts of political expression. Since the High Court case of Theophanous, the scope of the public’s implied rights of freedom of speech have been steadily curtailed by Howard appointees to the bench. As the scope of freedom of expression shrinks, the power of the gatekeepers of information—the government and the private media—increases proportionally. If the government thinks that the scales are well balanced at the moment, it is deluded.
The Attorney-General’s other stated reason for the government refusing to enact its own anti-SLAPP legislation was that he wanted to wait for COAG to act and see what happened with one particular legal action—the Gunns case in Victoria. I am not alone in considering that the Gunns case is not really relevant to this debate except to serve as a warning of what might happen here without this legislation. In evidence before the committee, the JACS representatives said:
Given the firm stand taken by the Victorian Supreme Court in the Gunns case, it may be appropriate to observe the developments in that action before finalising legislation aimed at discouraging similar actions.
Firm action? Are they serious? This action has dragged on for over three years and not one word of substantive argument has yet been heard. The court has indulged the plaintiffs by allowing them to submit three spurious and patently inadequate statements of claim, and they have not been required to pay the defendants full compensatory costs or damages.
Mr Corbell: Point of order, Mr Speaker: Dr Foskey is referring to a matter that is currently before the courts—and in fact is reflecting on decisions made by the courts in a case that is still active. Whilst I may have some sympathy for her commentary, it is quite improper for her to criticise the courts, particularly in a matter which is still before the court and is yet to be resolved.
MR SPEAKER: Please stop the clock while I consider the matter. I thank members for their forbearance. I am always keen to ensure that there is reasonable debate about matters in this place. However, you will recall that I am also quite cautious about allowing members to comment on matters which are before the courts. I do not have an intricate knowledge of the matter which the Attorney-General refers to, except that I do know that they are civil proceedings. The resolution agreed to by the Assembly on 6 March 2008 draws attention to civil proceedings that are active. I therefore caution against reference to cases which are active before the courts, Dr Foskey.
Mr Corbell: On the point of order, if I may, Mr Speaker—and I thank you for your ruling—Dr Foskey’s specific language was that the court had “indulged” the plaintiffs in “spurious” applications. That is a fairly serious assertion to be made.
MR SPEAKER: I have taken your point, Mr Corbell.