2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Dr Deb Foskey)

An Act to protect and encourage participation in public debate and matters of public interest, and discourage people and corporations from bringing or maintaining legal proceedings that interfere with another person’s right to engage in public participation

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Protection of Public Participation Act 2008.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘improper purpose—see section 6.’ means that the term ‘improper purpose’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

The purpose of this Act is to protect and encourage public participation, and discourage people from interfering with another person’s right to engage in public participation by beginning or maintaining, or giving notice of an intention to begin or maintain, a proceeding against the other person—

(a) by giving a person the right to apply for a declaration from the Magistrates Court that the person’s conduct constitutes public participation; and

(b) by providing—

(i) an opportunity, at or before the trial of a proceeding, for the Supreme Court to consider whether the proceeding (in whole or in part) begun or maintained against a defendant constitutes interference with the defendant’s right to engage in public participation; and

(ii) if the Supreme Court finds that the proceeding does constitute interference with that right—for the summary dismissal of the proceeding and the awarding of costs to the defendant; and

(iii) for the awarding of punitive or exemplary damages to the defendant if the Supreme Court finds that the proceeding was begun or maintained for an improper purpose.

For this Act, a proceeding is taken to be begun or maintained against a defendant for an improper purpose if—

(a) the defendant’s conduct that would be the subject of the proceeding is public participation; and

(b) when viewed on an objective basis—

(i) there is no reasonable expectation that the proceeding will succeed; and

(ii) a purpose for beginning or maintaining the proceeding is—

(A) to discourage the defendant (or anyone else) from engaging in public participation; or

(B) to divert the defendant's resources away from engagement in public participation to the proceeding; or

(C) to otherwise punish the defendant for engaging in public participation.

(1) In this Act:

public participation means conduct aimed (in whole or in part) at influencing public opinion, or promoting or furthering action by the public, a corporation or government entity in relation to an issue of public interest.

(2) However, public participation does not include conduct—

(a) that contravenes an order of a court or constitutes contempt of a court; or

(b) that constitutes vilification based on race, sex, sexuality, ethnicity, nationality or creed; or

(c) that causes or threatens to cause physical injury or damage to property; or

(d) that constitutes trespasses on a place of private residence; or

(e) if—

(i) the conduct is communication by a party to an industrial dispute between an employer and employee, former employee, contractor or agent; and

(ii) the communication relates to the subject matter of the dispute; or

(f) advertising goods or services for commercial purposes; or

(g) that incites others to engage in conduct mentioned in paragraphs (a), (b), (c) or (d).

(1) A person has the right to engage in public participation.

(2) However, it is not a defence to a prosecution for an offence that the defendant’s conduct constituted public participation.

(1) If a person (A) gives notice of an intention to begin a proceeding against another person (B) in relation to the conduct of B, B may apply to the Magistrates Court for a declaration that—

(a) the conduct that would be the subject of the proceeding constitutes public participation; and

(b) beginning a proceeding against B would be inconsistent with B’s right under this Act to engage in public participation.

(2) An application under subsection (1)—

(a) must be served on A; and

(b) must be heard by the Magistrates Court not later than 30 days after the day when the application is served on A; and

(c) may be heard in the absence of A.

(3) The Court may make a declaration under subsection (1) only if satisfied that—

(a) B honestly and reasonably believed that the conduct was justified; and

(b) the issuing of a proceeding against B would be inconsistent with B’s right under this Act to engage in public participation.

(4) The Magistrates Court may make the orders it considers appropriate (including orders as to costs) on an application under this section.

(1) A person against whom a proceeding is begun (the defendant) who considers that the proceeding (in whole or in part) is inconsistent with the defendant’s right to engage in public participation under this Act may apply to the Supreme Court for either or both of the following orders:

(a) an order dismissing the proceeding (in whole or in part);

(b) an order for costs in relation to the proceeding.

(2) An application under this section must—

(a) be served on the plaintiff in the proceeding; and

(b) be dealt with by the Supreme Court as soon as reasonably practicable.

(3) Unless the Supreme Court otherwise orders, any further application, procedure or other step in the proceeding is suspended until the application under this section is decided.

(4) The Supreme Court may make an order under this section if satisfied that—

(a) the conduct of the defendant constitutes public participation; and

(b) the defendant honestly and reasonably believed that the conduct was justified.

(5) The Supreme Court may, on application by the defendant or on its own initiative, in addition to the orders mentioned in subsection (1), make an order for punitive or exemplary damages if satisfied that the proceeding (or part of the proceeding) was begun against the defendant for an improper purpose.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• Magistrates Court

• must (see s 146)

• proceeding

• Supreme Court

• under.

conduct includes communication.

government means the Territory, the Commonwealth, a State, another Territory or a local government of a State.

government entity includes—

(a) an instrumentality, officer or employee of the government; and

(b) a contractor or anyone else who exercises a function on behalf of the government.

improper purpose—see section 6.

public participation—see section 7.

Presentation speech made in the Legislative Assembly on 2008.

Notified under the Legislation Act on 2008.

For the latest republication of amended laws, see www.legislation.act.gov.au.