Page 3798 - Week 10 - Wednesday, 27 August 2008
actions can still be brought by company executives who claim that they are so closely tied to a corporation that any attack on the company’s practices is an attack on them. Also, a corporation with fewer than 10 employees can bring a defamation action. Defamation actions have proven to be a favourite vehicle for SLAPP suits in the past, and they should not be excluded from the operation of these laws.
Perhaps the government is reluctant to introduce laws that may impinge on the uniformity of the so-called model national defamation laws. The ACT had to compromise some of our existing defamation provisions when the uniform laws were introduced. If the exclusion of defamation from the purview of this act is as a result of the COAG arrangements, it is yet another example of how our participation in COAG has not served the best interests of the ACT. I query what prescribed proceedings are contemplated by the government as being excluded from the purview of the act under regulation. Again, the explanatory material sheds no light whatsoever on which proceedings will be prescribed.
It is a mistake to omit clause 9 of my bill, which would provide that the Magistrates Court could issue a declaration that particular conduct would constitute public participation. I take the Attorney-General’s point that the Supreme Court ought not be bound by a lower court’s declaration, but I think this misses the point. It would be a brave or foolish plaintiff that proceeded with an unmeritorious SLAPP suit in the face of a Magistrates Court declaration. It would also be a brave or foolish lawyer who agreed to act for a plaintiff wanting to pursue an unmeritorious action.
The government’s amendments mean that a person being threatened or monstered by a hostile corporation will have to wait until they are actually being sued. There is no response left in this bill which one could use in response to bullying legal threats. You will have to wait until you are sued, and then you will have to go through the process of defending that legal action. Under my original provisions, the threat of legal action would also trigger the right to go to court and get a declaration that you are simply engaging in your right to public participation. A declaration would serve as both a shield and a reassurance that a person or organisation was likely to be able to resist improper interference with their planned course of action. A declaration could be used to convince other people or organisations that their assets and private lives were likely to be safe from being devoured by a hostile SLAPP suit if they chose to exercise their right of public participation in the manner covered by the declaration.
The choice of using the Magistrates Court as the forum for seeking a declaration was on the basis of minimising costs. If the junior nature of the forum is the problem then perhaps the Supreme Court would be the appropriate venue or possibly a form of action in the new ACAT. I urge the government to look at reinstating this clause.
In regard to amendment No 6, I have some concerns about the limitation imposed by these regulations on the quantum of damages available. I wait to see what the regulations will look like and what formulae will be prescribed to work out financial penalties. Perhaps the government could explore the possibility of setting potential damages at the same level as the damages claimed by the plaintiff in their statement of claim.