The end of the Gunns 20 case has reignited calls for legislation to prevent Strategic Litigation Against Public Participation (SLAPP) lawsuits. Victorian Greens MP Sue Pennicuik’s appeal is only the most recent public argument for the implementation of anti-SLAPP laws across Australia.
Following many cases in which community activists have been sued as a result of their speech or political protest, model anti-SLAPP legislation has been developed for state jurisdictions and the ACT Parliament actually passed the Protection of Public Participation Act in 2008 although its provisions were not as strong as the model legislation.
But while these law suits have focused attention on the right to free speech and to political protest, questions remain as to how they fit into the human rights dialogue more broadly and whether a Human Rights Act would help alleviate the problem of rogue law suits.
Australia has no bill of rights and no constitutional provisions protecting basic civil and political rights although there is a limited right to free speech implied by the federal constitution and there are statutes of rights in the Australian Capital Territory and in Victoria.
On International Human Rights Day in 2008, the Rudd Government established an independent committee to conduct a public consultation into the adequacy of human rights protections in Australia. A constitutional bill of rights was explicitly ruled out in the consultation process. Even so, the suggestion of a statutory bill was met with strident resistance from the Opposition and others who see any charter of rights as transferring parliamentary power and decisions to an unelected judiciary.
During the public consultation process, the Gunns 20 case and the problem of SLAPP suits more generally was raised in some submissions and public meetings, but the issue did not make it into the committee’s final report.
The committee did, however, recommend the adoption of a Human Rights Act, which would impose an obligation on all entities established under federal law (presumably including the courts) to act in accordance with human rights (including the basic rights of free speech, freedom of peaceful assembly and association and the right to participate in public life). Depending on the framing of any eventual Human Rights Act, this obligation could have significant impacts on SLAPP suits.
The obligation to act in accordance with human rights may provide a guide to the judiciary in presiding over cases of public participation. The history of SLAPP suits in Australia features several cases in which the judiciary and court system have not protected the right to free speech and the right to protest.
In the highest-profile action of the 15 defamation cases brought in relation to the proposed bridge to Hindmarsh Island in South Australia, Chapman & Ors v Conservation Council of SA & Ors, basic and lawful acts of public participation were taken as evidence of malice on the part of defendants. In the Gunns 20 case, the size and scare factor of the case was greatly increased by exorbitant claims for aggravated and exemplary damages — claims made on the basis that the defendants were engaged in a campaign to protect Tasmania’s forests.
These cases provide a challenge to the concern that a bill of rights will "transfer" power from the Parliament to the courts. The lines around what is and is not legitimate public participation have never been drawn simply by parliaments, but are also drawn by judges in civil law cases. This was perhaps most evident in the famous Lange judgement defining the implied free speech in the constitution but it is evident as well in many smaller cases involving political protest. Unfortunately, the civil law draws the lines around lawful speech and protest far short of what most people would accept as legitimate democratic behaviour and the proper rights of citizens.
An Act or charter of rights which clearly stated that free speech, free association and political protest are fundamental rights of citizens in a democracy — rather than evidence of bad behaviour — should influence judicial assessment of protester behaviour and questions of damages. Australian judges would finally be required to consider not just the plaintiff’s property rights (as now), but also the human rights of the defendants and the community standards of democratic behaviour. This would not invalidate claims brought in any lawsuit, but — without the possibility of a finding of malice or of large punitive damages for speech or protest — the viability of many SLAPP suits would disappear.
However, the situation is not entirely straightforward.
Despite overwhelming public support for a Human Rights Act (out of a total of 32,091 submissions in the public consultation which dealt with a human rights act, 27,888 were in favour) it is far from clear whether the Rudd Government has the political will to implement a charter of rights.
A further uncertainty arises as to the extent of the protection that such a charter would afford. It remains an open question whether the existing state charters of rights in Australia cover the common law in their particular jurisdictions, and, therefore, it is not clear how relevant they — or any federal law based on them — will be to SLAPP suits. At this stage, it is just hopeful conjecture that a human rights obligation imposed on Federal Court judges will flow through to civil litigation, and that over time this would impact on the common law more broadly.
Furthermore, the experience in the United States shows that any broad charter or bill of rights represents only the first step. In the US, despite a constitutional bill of rights, over half of the state jurisdictions have passed some form of anti-SLAPP legislation. Clearly, to adequately protect public participation, purpose-built anti-SLAPP legislation is still required — but in this regard, as with a bill of rights, Australia is sadly lacking.
This is an adapted excerpt from Greg Ogle’s book, Gagged: The Gunns 20 and other law suits (Envirobook: 2009).