Page 3794 - Week 10 - Wednesday, 27 August 2008
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rights that overlap with the right to engage in public participation, and because it is inappropriate to create a human right outside the existing human rights framework.
Government amendment No 6 omits clause 9 of the bill and substitutes a new clause 9—“Civil penalty”. The new section will apply if a person commences proceedings to which the act applies and the court is satisfied that (a) the defendant’s conduct is public participation; and (b) the proceeding is started or maintained for an improper purpose.
Under clause 9 (2), the court may order the plaintiff to pay to the territory a financial penalty not more than the prescribed amount. Regulations will also provide for a way in which the penalty is worked out. An order may be made on application by the territory or on the court’s own initiative. Clause 9 contains a note advising that, if a proceeding is for an improper purpose, the court’s power to award costs includes the power to order that those costs be assessed on an indemnity basis.
Finally, government amendment No 7 is in relation to the original clause 10, which allows the Supreme Court to dismiss a proceeding and make an order for costs if satisfied that the conduct of the defendant constitutes public participation and that the defendant honestly and reasonably believed that their conduct was justified. This clause is being omitted as 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 amendment omits clause 10 of the bill and substitutes a new clause 10 and clause 11. Clause 10 gives the executive a regulation-making power. Clause 11 provides for the act to be reviewed as soon as practicable after 1 January 2012.
MR STEFANIAK (Ginninderra) (4.44): The JACS officials who briefed my office in relation to this matter indicated that the government’s amendments are designed to protect public participation and for courts to impose penalties on plaintiffs who bring actions for an improper purpose—for example, to silence public opposition to activities of the plaintiffs. They are also intended to maintain the integrity of the general body of civil wrongs. During the briefing the officials advised that the bar is supportive of the government’s amendments, as is the author of the Civil Law (Wrongs) Act.
It should be noted, in dealing with these amendments together, that no other jurisdiction in Australia has similar legislation and that in the ACT there have been no cases of the kind that this bill would target. However, it would not be beyond imagination, for example, that the gas-fired power station had the potential to be our first. One must wonder then about the urgency in getting this bill through now, but we can understand that and we have all agreed that it will go through; that is fine.
We will be supporting the government’s amendments. I will mention a few of the amendments. It is very much a matter, as I said earlier in the in-principle stage, of waiting to see how this pans out in practice. Starting with the last amendment that the attorney has brought in, amendment No 7 states that “the minister must review the operation of this act as soon as practicable after 1 January 2012”. That means we have got a bit over three years before the minister has to do it. That section expires on 1 January 2014.
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