Legislative Assembly for the ACT: 2008 Week 10 Hansard (Wednesday, 27 August 2008) . . Page.. 3793 ..
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (4.37): I seek leave to move amendments Nos 2 to 7 circulated in my name together.
MR CORBELL: I move amendments Nos 2 to 7 circulated in my name together and I table a supplementary explanatory statement to the government amendments [see schedule 1 at page 3869].
These amendments deal with a range of issues that the government has concerns with in relation to this bill. Amendment No 2 omits clause 5 of the bill and substitutes a new clause 5. It removes references to other clauses that will be removed from the bill and inserts a clearer definition that includes an objective “reasonable person” test. The new provision states that the purpose of the act is to protect public participation and discourage certain civil proceedings that a reasonable person would consider interferes with engagement in public participation.
Government amendment No 3 omits clause 6 of the bill and substitutes a new clause 6. The amendment modifies the meaning of “improper purpose’ so that a proceeding is started or maintained for an improper purpose if a reasonable person would consider that the main purpose of the proceeding is (a) to discourage the defendant or another person from engaging in public participation; (b) to divert the defendant’s resources away from engagement in public participation; and (c) to punish or disadvantage the defendant for engaging in public participation.
The amendment avoids penalising a plaintiff who has a very legitimate cause of action but is also motivated by a desire to penalise or discourage a detractor. The court should decide how the merits of the plaintiff’s case are to be treated.
Government amendment No 4 omits clause 7 and substitutes a new clause 7. The new meaning of “public participation” is substantially the same as the omitted provision except that, as amended, it relies on the belief of a reasonable person. The exclusions from that meaning set out in clause 7 (2) are also substantially the same, with the following exceptions. Paragraph 2 (b) now excludes unlawful vilification under the Discrimination Act 1991; paragraph 2 (c) now excludes conduct that causes or is reasonably likely to cause physical damage or injury to property; new paragraph 2 (e) excludes conduct that constitutes an offence punishable by imprisonment for longer than 12 months; paragraph 2 (f) replaces paragraph 2 (e); and paragraph 2 (g) replaces paragraph 2 (f).
Government amendment No 5 omits clause 8 of the bill and substitutes a new clause which describes the application of the act. Clause 8 (1) provides that this act applies to civil proceedings in which the plaintiff may claim damages. The act will not apply to an action for defamation, a prescribed proceeding or an action commenced before the commencement of the act.
The original clause 8 creates a positive right to engage in public participation. This will be omitted, as the government’s Human Rights Act already sets out a number of