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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Protection of Public Participation
Bill 2008
A BILL FOR
An Act to protect and encourage participation in public debate and matters
of public interest, and dissuade persons and corporations from bringing or
maintaining legal proceedings that interfere with another's right to engage in
public participation.
Contents
1 Short
title
2 Commencement
3 Purpose of Act
4 Interpretation
5 Right to
engage in public participation
6 Declaration that certain communications or
conduct constitute public participation
7 Dismissal of certain
proceedings
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Protection of Public Participation
Act 2008.
This Act will come into operation 6 months after the day on which it is
assented to by the Governor.
The purpose of this Act is—
(a) to protect and encourage public participation; and
(b) to dissuade persons from interfering with another person's right to
engage in public participation by commencing or maintaining, or threatening to
commence or maintain, legal proceedings against that other person.
(1) In this Act, unless the contrary intention appears—
government means local, state or federal
government;
government body includes any government department, agency,
employee, agent or other person with authority to act on behalf of a government
body;
improper purpose—see subsection (2);
public participation means communication or conduct aimed (in
whole or in part) at influencing public opinion, or promoting or furthering
action by the public, a corporation or government body in relation to an issue
of public interest, but does not include communication or
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 trespass; or
(e) that incites, or attempts to incite, others to engage in communication
or conduct that falls within any of the preceding paragraphs; or
(f) in the course of an industrial dispute (within the meaning of the
Fair Work Act 1994) by a party to the dispute; or
(g) advertising goods or services for commercial purposes;
state includes a territory of the Commonwealth.
(2) For the purposes of this Act, legal proceedings will be taken to have
been commenced or maintained against a defendant for an improper purpose
if—
(a) the defendant's communication or conduct the subject of the
proceedings is public participation by the defendant; and
(b) when viewed on an objective basis—
(i) there is no reasonable expectation that the proceedings will succeed;
and
(ii) a purpose for commencing or maintaining the proceedings
is—
(A) to discourage the defendant (or any other person) from engaging in
public participation; or
(B) to divert the defendant's resources away from the defendant's
engagement in public participation to the proceedings; or
(C) to otherwise punish the defendant for engaging in public
participation.
5—Right
to engage in public participation
(1) A person has the right to engage in public participation.
(2) However, it is not a defence to a charge of an offence against a
person to claim that the person's communication or conduct the subject of the
charge constituted public participation by the person.
6—Declaration
that certain communications or conduct constitute public
participation
(1) If a person (A) threatens (expressly or impliedly) to
commence legal proceedings against another person (B) in respect
of a communication made by or conduct of B, B may apply to the Magistrates
Court for a declaration that—
(a) the communication or conduct that would be the subject of the
proceedings constitutes public participation by B; and
(b) commencing proceedings 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 within 30 days of the date
of service; and
(c) may be heard in the absence of A.
(3) The Court may only make a declaration under subsection (1) if
satisfied that—
(a) B's communication or conduct was based on B's honest and reasonable
belief; and
(b) a person of similar disposition to B would believe the communication
or conduct was reasonable; and
(c) the issuing of proceedings against B would be inconsistent with B's
right under this Act to engage in public participation.
(4) The Court may make such orders as it thinks fit (including an order as
to costs) on an application under this section.
7—Dismissal
of certain proceedings
(1) A person against whom legal proceedings are commenced (the
defendant) who considers that the proceedings (in whole or in
part) are 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 proceedings (in whole or in part);
(b) an order for costs in relation to the proceedings (including costs
incurred in pursuing rights or remedies available under or contemplated by this
Act).
(2) An application under this section—
(a) must be served on the plaintiff in the proceedings; and
(b) must be dealt with by the Court as soon as reasonably
practicable.
(3) Subject to any contrary order by the Court, any further application,
procedure or other step in the proceedings is suspended until determination of
the application under this section.
(4) The Court may make an order under this section if satisfied
that—
(a) when viewed on an objective basis, the defendant's communication or
conduct that is the subject of the proceedings constitutes public participation
by the defendant; and
(b) the defendant's communication or conduct was based on the defendant's
honest and reasonable belief; and
(c) a person of similar disposition to the defendant would believe the
defendant's communication or conduct was reasonable.
(5) The Court may, on application by the defendant or on its own motion,
in addition to the orders referred to in subsection (1), make an order for
punitive or exemplary damages if satisfied that the proceedings (or part of the
proceedings) were commenced against the defendant for an improper
purpose.