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TASMANIA
PROTECTION OF PUBLIC PARTICIPATION
BILL 2005
CONTENTS
1. Short title
2. Commencement
3. Objects of Act
4. Act to bind the Crown
5. Interpretation
PART 1 - DEFAMATION
6. Defamation
7. Corporations not to sue for defamation
8. Politician, Public Servant or Public Official not to sue for defamation
9. Defamation orders
PART 2 PROTECTION OF PUBLIC PARTICIPATION
10. Application for summary dismissal
11. Orders available to defendant
12. Onus on plaintiff at trial
13. Court may hear any evidence and argument
14. Disposition of security
[Bill 14]
(This page is part of the document and is required for numbering purposes.)
PROTECTION OF PUBLIC PARTICIPATION BILL 2005
(Brought in by Nicholas James McKim MHA)
A Bill For
An Act to encourage participation in public debate, and dissuade
persons and corporations from bringing or maintaining legal
proceedings or claims for an improper purpose.
Be it enacted by his Excellency the Governor of Tasmania, by and with the advice and
consent of the Legislative Council and House of Assembly, in Parliament assembled, as
follows:
Short title
1. This Act may be cited as the Protection of Public Participation Act 2005.
Commencement
2. The provisions of this Act commence on a day to be proclaimed.
Objects of Act
3. The object of this Act is to
(a) encourage public participation, and dissuade persons from bringing or
maintaining proceedings or claims for an improper purpose, by providing
(i) an opportunity, at or before the trial of a proceeding, for a defendant
to allege that, and for the court to consider whether, the proceeding or a
claim within the proceeding is brought or maintained for an improper
purpose,
(ii) a means by which a proceeding or claim that is brought or maintained
for an improper purpose can be summarily dismissed,
(iii) a means by which persons who are subjected to a proceeding or a
claim that is brought or maintained for an improper purpose may obtain
reimbursement for all reasonable costs and expenses that they incur as a
result,
(iv) a means by which punitive or exemplary damages may be imposed
in respect of a proceeding or claim that is brought or maintained for an
improper purpose, and
(v) protection from liability if the communication or conduct complained
of constitutes public participation; and
(b) preserve the right of access to the courts for all proceedings and claims
that are not brought or maintained for an improper purpose;
(c) to make the law of Tasmania conform more nearly to the International
Covenant on Civil and Political Rights, and in particular Article 19 thereof, by
better protecting the right to freedom of expression.
Act to bind the Crown
4. This Act binds the Crown in right of Tasmania and, so far as the legislative power
of Parliament permits, in all its other capacities.
Interpretation
5. (1) In this Act:
"claim" means any claim for relief within a proceeding;
"defendant" means a person against whom a proceeding is brought or maintained;
"government body" means any level of government, and includes
(a) any body funded by government;
(b) any body appointed or established by, or from which advice is requested
by, the State government, and any equivalent body of any other level of
government, and
(c) any local government body
"improper purpose" has the meaning set out in subsection (2);
"level of government" includes
(a) the Commonwealth government,
(b) the State government,
(c) the government of any other State of Australia, and
(d) the government of any municipality;
"plaintiff" means a person who initiates or maintains a proceeding against a
defendant;
"proceeding" means any action, suit, matter, cause, counterclaim, appeal or
originating application that is brought in any court, but does not include a
prosecution for an offence or a crime;
"public participation" means communication or conduct aimed at influencing
public opinion, or promoting or furthering lawful action by the public or by any
government body, in relation to an issue of public interest, but does not include
communication or conduct
(a) in respect of which an information has been laid or an indictment has
been preferred in a prosecution conducted by the Director of Public
Prosecutions,
(b) that constitutes a breach of any enactment,
(c) that contravenes any order of any court,
(d) that intentionally or recklessly causes damage to or destruction of real
property or personal property,
(e) that intentionally or recklessly causes physical injury,
(f) that constitutes trespass to real or personal property,
(g) by way of advertising for commercial goods or services; or
(h) that is otherwise considered by a court to be unlawful or an unwarranted
interference by the defendant with the rights or property of a person;
"reasonable costs and expenses", in relation to a proceeding or claim, means
costs and expenses that
(a) have been agreed on between the plaintiff and the defendant, or
(b) if no agreement has been reached, consist of the following:
(i) the amount of legal fees and disbursements that are determined by a
court to be payable to a defendant for all matters related to the
proceeding or claim, as the case may be, including all of the reasonable
costs and expenses incurred by the defendant in pursuing rights or
remedies available under or contemplated by this Act in relation to the
proceeding or claim;
(ii) any other costs and expenses that the court considers to be reasonably
incurred by the defendant in relation to the proceeding or claim.
(2) A proceeding or claim is brought or maintained for an improper purpose if
(a) the plaintiff could have no reasonable expectation that the proceeding or
claim will succeed at trial, and
(b) a principal purpose for bringing the proceeding or claim is
(i) to dissuade the defendant from engaging in public participation,
(ii) to dissuade other persons from engaging in public participation,
(iii) to divert the defendant's resources from public participation to the
proceeding, or
(iv) to penalize the defendant for engaging in public participation.
Part 1 - DEFAMATION
Defamation
6. Public participation constitutes an occasion of qualified privilege and, for that
purpose, the communication or conduct that constitutes the public participation
is deemed to be of interest to all persons who, directly or indirectly,
(a) receive the communication, or
(b) witness the conduct.
Corporations not to sue for defamation
7. (1) No corporation shall be entitled to sue for any cause of action in defamation,
and no person shall be entitled to sue for any cause of action in defamation
in reliance on any imputation arising from any statement made about a
corporation.
(2) Subsection (1) does not limit any law relating to the protection of
competition
Politician, Public Servant or Public official not to sue for defamation
8. No politician, public servant or public official shall be entitled to sue for any
cause of action in defamation arising from statements relating to his or her
conduct in office or, in the absence of malice, which the plaintiff must prove,
fitness for office.
Defamation orders
9. (1) In the absence of malice, which the plaintiff must prove, no general damages
shall be awarded for defamation.
(2) Where a plaintiff succeeds in an action for defamation, the court may make
any of the following orders:
(a) a declaration that the statement complained of was defamatory and/or untrue,
(b) a declaration as to the true position as found by the Court;
(c) an order requiring the defendant to make a retraction;
(d) an order requiring the defendant to make a correction;
(e) an order compelling the defendant to publish a retraction, correction or any
other statement in such form, in such place, and on such terms as the Court may
consider just in all the circumstances;
(f) an order compensating the plaintiff for any special damages incurred by
reason of the defamation.
Part 2 - PROTECTION OF PUBLIC PARTICIPATION
Application for summary dismissal
10. (1) If a defendant against whom a proceeding is brought or maintained considers
that the whole of the proceeding or any claim within the proceeding has been
brought or is being maintained for an improper purpose, the defendant may,
subject to subsection (2), bring an application for one or more of the following
orders:
(a) to dismiss the proceeding or claim, as the case may be;
(b) for reasonable costs and expenses;
(c) for punitive or exemplary damages against the plaintiff.
(2) An application under subsection (1) shall be brought within 60 days of the
service of the writ or other process on the defendant, and shall be dealt with by a
court as soon as reasonably practicable.
(3) All further applications, procedures or other steps in the proceeding are,
unless the court otherwise orders, suspended until the application has been heard
and decided.
(4) Nothing in subsection (3) prevents the court from granting an injunction
pending a determination of the rights under this Act of the parties to a
proceeding.
Orders available to defendant
11. (1) On an application brought by a defendant under subsection 7 (1), the
defendant may obtain an order under subsection (2) of this section if the
defendant satisfies the court, on the balance of probabilities, that, when
viewed on an objective basis,
(a) the communication or conduct in respect of which the proceeding or claim
was brought constitutes public participation, and
(b) a principal purpose for which the proceeding or claim was brought or
maintained is an improper purpose.
(2) If, on an application brought by a defendant under subsection 7 (1), the
defendant satisfies the court under subsection (1) of this section in relation to the
proceeding or in relation to a claim within the proceeding,
(a) the defendant may obtain one or both of the following orders:
(i) an order dismissing the proceeding or claim, as the case may be;
(ii) an order that the plaintiff pay all of the reasonable costs and expenses
incurred by the defendant in relation to the proceeding or claim, as the
case may be, including all of the reasonable costs and expenses incurred
by the defendant in pursuing rights or remedies available under or
contemplated by this Act in relation to the proceeding or claim, and
(b) the court may, in addition to the orders referred to in paragraph (a), on its
own motion or on the application of the defendant, award punitive or
exemplary damages against the plaintiff.
(3) If, on an application brought by a defendant under subsection 7 (1), the
defendant is unable to satisfy the court under subsection (1) of this section, the
defendant may obtain an order under subsection (4) if the defendant satisfies the
court that there is a realistic possibility that, when viewed on an objective basis,
(a) the communication or conduct in respect of which the proceeding or claim
was brought constitutes public participation, and
(b) a principal purpose for which the proceeding or claim was brought or
maintained is an improper purpose.
(4) If, on an application brought by a defendant under subsection 7 (1), the
defendant satisfies the court as required in subsection (3) of this section in relation
to the proceeding or a claim within the proceeding, the court may make the
following orders:
(a) an order, on the terms and conditions that the court considers appropriate,
that the plaintiff provide as security an amount that, in the court's opinion, will
be sufficient to provide payment to the defendant of the full amounts of the
reasonable costs and expenses and punitive or exemplary damages to which
the defendant may become entitled under this Act;
(b) an order that any settlement, discontinuance or abandonment of the
proceeding be effected with the approval of the court and on the terms the
court considers appropriate.
(5) On an application for the settlement, discontinuance or abandonment of a
proceeding or claim in respect of which an order was made under subsection (4)
(b), the court may, despite any agreement to the contrary between the defendant
and the plaintiff, order the plaintiff to pay all of the reasonable costs and expenses
incurred by the defendant in relation to the proceeding or claim, as the case may
be, including all of the reasonable costs and expenses incurred by the defendant in
pursuing rights or remedies available under or contemplated by this Act in relation
to the proceeding or claim.
(6) If, in a proceeding in which the defendant has obtained an order under
subsection (4), the defendant makes an application to dismiss the proceeding for
want of prosecution, the defendant may obtain an order under subsection (7) of this
section if
(a) the proceeding is dismissed for want of prosecution, and
(b) the plaintiff is unable to satisfy the court on the application that, when
viewed on an objective basis,
(i) the communication or conduct in respect of which the proceeding was
brought does not constitute public participation, or
(ii) none of the principal purposes for which the proceeding was brought
or maintained were improper purposes.
(7) If, under subsection (6), the defendant is entitled to obtain an order under this
subsection, the defendant may obtain an order that the plaintiff pay all of the
reasonable costs and expenses incurred by the defendant in relation to the
proceeding, including all of the reasonable costs and expenses incurred by the
defendant in pursuing rights or remedies available under or contemplated by this
Act in relation to the proceeding.
Onus on plaintiff at trial
12. (1) A defendant who has obtained an order under sub-section 8 (4) in respect
of a proceeding or claim may, at the trial of the proceeding, obtain one or
more of the orders referred to in sub-section 8 (2) if
(a) the defendant alleges at trial that
(i) the communication or conduct in respect of which the proceeding or
claim was brought constitutes public participation, and
(ii) the proceeding or claim was brought or maintained for an improper
purpose,
(b) the proceeding or claim is discontinued or abandoned by the plaintiff or is
dismissed, and
(c) the plaintiff is unable to satisfy the court at trial that, when viewed on an
objective basis,
(i) the communication or conduct in respect of which the proceeding or
claim was brought does not constitute public participation, or
(ii) none of the principal purposes for which the proceeding or claim was
brought or maintained were improper purposes.
(2) A defendant who has not obtained an order under section 8 (4) may, at the trial
of the proceeding, obtain one or more of the orders referred to in section 8 (2) if
(a) the defendant gives notice to the plaintiff, at least 60 days before the date
scheduled for the trial of the proceeding (or such other time as the court may
direct), that the defendant intends at trial to seek an order under this section in
respect of a proceeding or claim,
(b) the defendant satisfies the court at trial that there is a realistic possibility
that, when viewed on an objective basis,
(i) the communication or conduct in respect of which the proceeding or
claim was brought constitutes public participation, and
(ii) a principal purpose for which the proceeding or claim was brought or
maintained is an improper purpose,
(c) the proceeding or claim is discontinued or abandoned by the plaintiff or is
dismissed, and
(d) the plaintiff is unable to satisfy the court at trial that, when viewed on an
objective basis,
(i) the communication or conduct in respect of which the proceeding or
claim was brought does not constitute public participation, or
(ii) none of the principal purposes for which the proceeding or claim was
brought or maintained were improper purposes.
Court may hear any evidence and argument
13. (1) Without limiting any other rights the parties may have to present
evidence and make arguments in an application brought under subsection 7
(1) or at a trial under section 9 (1) or (2), the parties may present evidence
and make arguments as follows:
(a) as to whether the communication or conduct in relation to which the
proceeding was brought constituted public participation;
(b) as to whether the proceeding was brought or is being maintained for an
improper purpose.
(2) The parties may present the evidence or make the arguments referred to in
subsection (1) (a) and (b) whether or not the evidence or arguments relate to the
particulars of the claim or claims raised by the plaintiff.
Disposition of security
14. (1) If a defendant succeeds under subsection 8 (7) in respect of a proceeding,
the defendant may obtain an order that the reasonable costs and expenses to
which the defendant is entitled under the order made under sunsection 8 (7)
be paid to the defendant out of any security provided by the plaintiff under
subsection 8 (4).
(2) If a defendant succeeds under subsection 9 (1) in respect of the whole of a
proceeding, the defendant may obtain an order that the following amounts be paid
to the defendant out of any security provided by the plaintiff under subsection 8
(4):
(a) the reasonable costs and expenses to which the defendant is entitled under
the order made under subsection 9 (1);
(b) any punitive or exemplary damages awarded to the defendant by the court.
(3) If a defendant succeeds under subsection 9 (1) in respect of a claim brought as
part of a proceeding, the defendant may obtain an order that the following amounts
be paid to the defendant out of any security provided by the plaintiff under
subsection 8 (4):
(a) whichever of the following the court considers best gives effect to the
purposes of this Act:
(i) the proportion of the reasonable costs and expenses referred to in
subparagraph (ii) of this paragraph that the claim bears to the proceeding
as a whole;
(ii) the reasonable costs and expenses incurred by the defendant in
relation to the proceeding, including all of the reasonable costs and
expenses incurred by the defendant in pursuing rights or remedies
available under or contemplated by this Act in relation to the proceeding;
(b) any punitive or exemplary damages awarded to the defendant by the court.
(4) After the defendant receives payment of the money to which the defendant is
entitled out of any security provided by the plaintiff under section 8 (4), any
portion of that security that is not provided to the defendant under this section,
including any interest that has accrued on that money, must be returned to the
plaintiff.