Legislative Assembly for the ACT: 2008 Week 10 Hansard (Wednesday, 27 August 2008) . . Page.. 3751 ..
been brought for an improper purpose. The penalty would deter individuals and companies who are contemplating a SLAPP suit and punish those who have brought an action for misusing court resources. Importantly, the penalty will also compensate the territory for lost court time. Regulations will provide an objective formula by which the court can quantify the cost of the action to the territory and the appropriate amount to be paid.
The government’s amendments will protect the ability of ACT residents to engage in debate on matters of public importance. In particular, the proposed civil penalty scheme will serve as a strong deterrent to entities who would otherwise be tempted to misuse the territory’s legal system in order to silence public criticism of their activities. In summary, the government supports the intent of the legislation but will amend it to ensure that it is both effective and fair.
MR STEFANIAK (Ginninderra) (12.05): I was on the legal affairs committee when the inquiry started, when we took some evidence down in Tasmania and also in Victoria. My colleague Mr Seselja then replaced me on the committee and saw through the carriage of the rest of the bill.
This is an important piece of legislation. It is very important that we balance the rights of individuals to protest and the rights of commercial interests to do their business without improper hindrance. It is true that some commercial interests have a plethora of legal weapons at their disposal and there are things like various torts and trade practices.
In the past we have seen defamation actions taken. I recall a case involving McDonalds in London. McDonalds lost in the end. They were using every trick in the book to basically stymie what was a reasonable point being raised by private individuals.
The notion of private individuals—third parties—being involved in the community interest has not been with us all that long. It goes back about 20 years. When I used to teach environmental law at Bruce TAFE in 1993-94, I can recall going through some of the early cases in the 1980s. In Sydney, gradually, third-party rights and people’s right to get involved in the community interest were finally recognised.
You can take that too far. Perhaps certain aspects of Dr Foskey’s bill here do just that. It is a very fine balancing act. The public does not have any legislative protective right to protest; people take their chances when they choose to participate in acts of political expression. We want to ensure that there is a proper right to protest and we want to ensure that the right of businesses to go about their proper activities is also protected.
But there have been some monumental issues and monumental cases where clearly the law would benefit from the change and there should be legislation to make it very difficult for some big corporation—it might even be government—to take action deliberately and unreasonably to stymie legitimate action by other parties, to misuse the system: misuse the system because they have the financial resources and the wherewithal to do so.