Page 3750 - Week 10 - Wednesday, 27 August 2008

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SLAPP suits are legal proceedings brought by entities, often large companies, which are aimed at discouraging or preventing members of the public from criticising their activities. SLAPP suits may be brought against individuals or groups in relation to conduct that includes holding, attending or speaking at public meetings; organising boycotts; and lobbying public officials. SLAPP-style litigation interferes with the freedom of citizens in a democratic society to speak freely and participate in community debate.

The government has publicly stated that it supports the policy intent of Dr Foskey’s bill. However, the bill in its current form presents a number of technical and legal difficulties. Consequently, the government will be supporting today’s bill, but moving a number of amendments in the detail stage. The amendments are aimed at striking an appropriate balance between the need to discourage and punish SLAPP-style litigation whilst also maintaining the right of an aggrieved person or entity to pursue a legitimate legal action.

The bill, as presented by Dr Foskey, contains three main substantive clauses. The government will remove these clauses from the bill for the following reasons. First, the bill in its current form creates a positive right to engage in public participation. The government proposes to remove this from the bill, as the Human Rights Act 2004 already sets out a number of rights that overlap with the right to engage in public participation. These rights include the right of peaceful assembly, the right to freedom of association and the right to freedom of expression, which includes “the freedom to seek, receive and impart information and ideas of all kinds”.

The government also feels that it is inappropriate to create a human right outside the existing human rights framework. The Human Rights Act provides that human rights may be subject to reasonable limits. Rights created outside the Human Rights Act may not be subject to reasonable limits in the same way as rights set out within that act. Therefore, the government’s preference is that rights as outlined in the Human Rights Act and its framework be considered paramount.

Secondly, the current bill provides for the Magistrates Court to declare that certain conduct constitutes public participation. This provision has no practical effect. The declaration by the Magistrates Court is not binding on a higher court and may itself be the subject of an appeal to the Supreme Court. In any event, the Supreme Court is not required to take the declaration into account when considering whether or not to dismiss a proceeding.

Third, the bill currently allows the Supreme Court to dismiss a proceeding and make an order for costs if it is satisfied that the conduct of the defendant constitutes public participation and that the defendant honestly and reasonably believed that their conduct was justified. The clause is problematic because its application is extremely wide. It may lead to the dismissal of cases in which plaintiffs have a genuine and legitimate cause of action simply because the conduct of the defendant was public participation.

The government therefore proposes to amend the bill to include a civil penalty scheme. A civil penalty would be payable by the plaintiff to the territory where an action has

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