Page 1174 - Week 04 - Wednesday, 9 April 2008

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With all due respect, I would have thought that His Honour was merely stating the obvious. The real questions are these: why was the action not struck out at the first hearing and what is wrong with the legal system that allows such abuses of the legal process to take place?

If laws like the one I am introducing today had been in place, the action would never have been brought. The bank would have known that its action would be summarily dismissed and that it would face punitive damages. It would have confined its statement of claim to grievances that could realistically be characterised as tortious wrongs.

If enacted, the laws that I am proposing today will make SLAPP suits less attractive because, by virtue of the availability of exemplary and punitive damages, a plaintiff bringing an unmeritorious claim for an improper purpose may have their action backfire on them and suffer real financial loss and loss of corporate image. This has been the experience in the US, where, at the end of last year, some 26 states had existing anti-SLAPP laws and another 10 had anti-SLAPP bills on foot.

I cannot understand why the ACT government considers that it is all too hard. If it is beyond the capacity or against the inclinations of the government and the departmental legal policy and drafting experts, we have available a number of bills from one of those other jurisdictions—for instance, California. California has long experience with these kinds of actions and has had robust anti-SLAPP legislation in place for over 15 years. Why doesn’t the ACT Labor Party want to protect the rights of unions and other community groups to pursue their causes using legal mechanisms free from the threat of crippling legal actions?

I am sure that the ACTU and all its affiliates will be very unimpressed that the ACT Labor Party opposes and rejects this legislation. The list of legal and civil rights luminaries who have signed a statement supporting this kind of legislation reads like a who’s who of Australian human rights advocates. The list is four pages long, so I will not read it out, but I seek leave to table the document.

Leave granted.

DR FOSKEY: I table the following paper:

Public participation law reform—Public interest lawyers’ statement in support, dated 10 April 2006.

The list is also contained in the back of the committee report. I urge members to look at it before deciding whether to support or reject the legislation. The statement reads:

As senior lawyers practising, advising and writing in the area of the law of public interest debate, we call on all Australian governments to implement law reform to protect the community’s right and ability to participate in public debate and political activity without fear of litigation.

The increasing phenomenon of litigation against community participation in public issues by comment or action has the serious effect of intimidating the community, chilling public debate and silencing voices which should be heard in

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