Protection of Public Participation Act 2008

The Act introduces two central definitions: “improper purpose” and “public participation”. Both use a “reasonable person” test, which imports an objective standard rather than relying on the subjective intent of the plaintiff. Improper purpose is defined in s 6. A proceeding is started or maintained for an improper purpose if a reasonable person would consider that the main purpose is (a) to discourage the defendant or anyone else from engaging in public participation, (b) to divert the defendant’s resources away from public participation to the proceeding, or (c) to punish or disadvantage the defendant for engaging in public participation. The word “main” is important: the plaintiff may have a genuine grievance as well, but if the predominant purpose is one of the listed aims, the threshold is met. The definition does not require the proceeding to be frivolous or vexatious. Public participation is defined in s 7(1) as conduct that a reasonable person would consider is intended (wholly or partly) to influence public opinion, or to promote or further action by the public, a corporation, or a government entity in relation to an issue of public interest. This is expansive. “Conduct” is defined in the dictionary to include communication, so speech, writing, protests, submissions, and online commentary are captured. “Government entity” is also defined broadly to include instrumentalities, officers, employees, and contractors exercising functions on behalf of government. The definition of public participation, however, contains a long list of exclusions in s 7(2). Conduct that contravenes a court order or constitutes contempt is excluded (paragraph (a)). Unlawful vilification under the Discrimination Act 1991, s 67A and the Criminal Code, s 750 (serious vilification) are excluded (paragraphs (b) and (c)). Conduct causing or threatening physical injury or property damage is excluded (paragraph (d)). Unlawful entry to residential premises is excluded (paragraph (e)). Any offence punishable by imprisonment for longer than 12 months is excluded (paragraph (f)). Communication by a party to an industrial dispute that relates to the subject matter of the dispute is excluded (paragraph (g)). Advertising goods or services for commercial purposes is excluded (paragraph (h)), which prevents the Act from being used to protect purely commercial marketing. Finally, incitement to any of the above excluded conduct is itself excluded (paragraph (i)). The exclusions apply regardless of whether the person has been convicted of an offence for that conduct (s 7(3)). This means that even if charges are dropped or acquitted, the conduct may still fall outside the definition of public participation.

The Act primarily affects plaintiffs and potential plaintiffs who commence or maintain civil proceedings in the Supreme Court or the Magistrates Court where the plaintiff may claim damages (s 8(1)). This includes individuals, corporations, government entities, and any other legal person capable of suing. The proceeding must be a civil proceeding; criminal proceedings are not covered. The plaintiff must be a party who starts or maintains the proceeding; the Act does not apply to cross-claims or third party proceedings unless they are treated as separate proceedings. The defendant in such a proceeding is the person whose conduct is alleged to be public participation. The Act gives the defendant no direct right to apply for a penalty; only the Territory (presumably the Attorney-General or the Director of Public Prosecutions) may apply, or the court may act on its own initiative (s 9(4)). So the defendant indirectly benefits if the court imposes a penalty or awards indemnity costs. The defendant can, however, bring the Act to the court’s attention and seek a ruling on whether the proceeding is for an improper purpose. The Territory itself is a potential beneficiary: any penalty ordered is paid to the Territory, not to the defendant. This creates an incentive for the Territory to intervene in cases where SLAPP activity is suspected. Government entities are also affected as possible plaintiffs. A council, government department, or contractor suing a protester could face a penalty if the court finds the main purpose is to discourage criticism. The Act also affects third parties such as legal practitioners, who may need to advise clients about the risk of a penalty or indemnity costs if the client’s litigation motive is questionable. The exclusion of defamation proceedings (s 8(2)(a)) means that a large class of SLAPP suits is not captured, so plaintiffs who use defamation law to silence critics are outside the Act’s reach. That is a significant limitation, because defamation is the most common legal threat against journalists and activists. The Act also does not apply to proceedings prescribed by regulation (s 8(2)(b)); no such regulation appears in the source, but the power could be used in future to narrow or broaden the scope.

The Act does not impose any positive duties on any person. It does not require a plaintiff to prove that their proceeding is not for an improper purpose; the burden rests on the party alleging improper purpose (or on the court when acting on its own motion) to satisfy the court that the proceeding is for an improper purpose and that the defendant’s conduct is public participation. The standard of proof is not specified in the Act, but as a civil penalty matter, it would likely be the civil standard of balance of probabilities, possibly with the Briginshaw gloss given the seriousness. The only right the Act explicitly creates is the court’s power to order a penalty. The defendant has a right to argue that the proceeding should be dismissed or stayed? The Act does not provide a mechanism to strike out or stay the proceeding. The defendant may rely on other rules of court, such as summary judgment or abuse of process, but the Act itself does not create a right to dismissal. The court’s order under s 9(2) is discretionary: “The court may order the plaintiff to pay to the Territory a financial penalty …”. Even if the two conditions are met, the court is not obliged to impose a penalty. The note to s 9 reminds the court that it has the power to order indemnity costs under the Court Procedures Rules 2006, r 1752. That is a separate power, not contingent on the Act, but the Act’s findings may inform the exercise of that power. The court can also act on its own initiative (s 9(4)(b)), meaning that even if neither the Territory nor the defendant applies, the court may raise the issue. The defendant’s main practical right is to draw the court’s attention to the Act and to lead evidence of public participation and improper purpose. The defendant can also seek an award of indemnity costs on the basis that the proceeding was for an improper purpose, even if the penalty is not sought. The Territory has a right to apply for a penalty. The regulation-making power in s 10 is a duty of the Executive only if it chooses to prescribe a penalty amount or further proceedings.

The sole penalty under the Act is the civil penalty ordered under s 9. The maximum penalty is “the amount (if any) prescribed by regulation”. At the date of this republication, no regulation prescribing a penalty amount is evident from the source. Therefore, the maximum penalty is effectively zero. The court cannot impose a penalty greater than zero, because s 9(2) says “not more than the amount (if any) prescribed by regulation.” If no amount is prescribed, the cap is zero, making the penalty provision a dead letter until the Executive acts. The Act does not authorise the court to impose a penalty other than a financial penalty; there is no power to order imprisonment, disqualification, or injunctive relief. The penalty is payable to the Territory, not to the defendant. The order must be worked out in accordance with a regulation (s 9(3)); the absence of a regulation may also prevent the court from determining the penalty. Enforcement of the penalty order would follow the usual civil debt enforcement procedures. The Act does not create an offence for non-payment. The court can act on its own initiative or on application by the Territory (s 9(4)). The Territory may apply at any time during the proceeding; there is no time limit specified. The note to s 9 refers to indemnity costs under the Court Procedures Rules 2006, r 1752. That is a separate and likely more potent enforcement tool. Indemnity costs can be substantial, often covering the defendant’s entire legal costs, and the court has an inherent jurisdiction to award them against a party who conducts litigation unreasonably or for an improper purpose. The Act provides a statutory basis for a finding of improper purpose, which may strengthen an application for indemnity costs. The Act does not confer any investigative powers, nor does it require the plaintiff to provide evidence of purpose. The court must be satisfied on the evidence before it. In practice, evidence of improper purpose may be discovered through the pleadings, correspondence, or from the nature of the claim itself. There is no provision for interlocutory applications, such as a temporary stay of proceedings pending a penalty hearing. The lack of a prescribed penalty greatly reduces the deterrent effect of the Act itself.

The Act’s most important interaction is with defamation law. Section 8(2)(a) expressly excludes a cause of action for defamation from the Act’s application. This means that a plaintiff can sue for defamation even if the defendant’s speech is public participation and even if the plaintiff’s purpose is to discourage that speech. The Act does not apply at all to defamation proceedings, regardless of the plaintiff’s motive. This is a deliberate choice that leaves a large gap in SLAPP protection, because defamation is the most common legal weapon against critics. The Act also interacts with the Discrimination Act 1991 and the Criminal Code. Conduct that constitutes unlawful vilification under the Discrimination Act 1991, s 67A, or serious vilification under the Criminal Code, s 750, is excluded from the definition of public participation (s 7(2)(b) and (c)). This prevents the Act from protecting hate speech. The Court Procedures Rules 2006 are directly referenced in the note to s 9. Rule 1752 gives the court the power to order costs on an indemnity basis, which is the primary enforcement mechanism in practice. The Act itself does not affect the substantive law of the underlying claim. If the plaintiff’s claim is otherwise valid, the Act does not render it invalid; it only exposes the plaintiff to a penalty if the improper purpose condition is met. The defendant can still lose the underlying case. The Act may interact with cross-vesting laws if proceedings are commenced in a federal court: the Act applies only to civil proceedings in the Supreme Court or Magistrates Court, so a proceeding in the Federal Court or the High Court would not be subject to the Act unless transferred to an ACT court. The Act may also interact with the common law tort of abuse of process, which similarly penalises plaintiffs who use litigation for improper purposes, but the common law requires proof of a predominant improper purpose and often a collateral advantage. The Act is not the exclusive remedy; a defendant may still pursue a common law action for abuse of process or malicious prosecution. The Act does not contain a provision expressly excluding or displacing common law remedies. The Act also interacts with the Legislation Act 2001, which provides default definitions and interpretation rules. The dictionary to the Act is part of the Act, and terms defined in the Legislation Act, such as “Magistrates Court”, “proceeding”, and “Supreme Court”, apply unless otherwise indicated.

The Act was originally enacted as the Protection of Public Participation Act 2008 (A2008-48) and commenced on 12 September 2008. It has been amended twice. The first amendment was by the Statute Law Amendment Act 2011 (No 3) (A2011-52), which commenced on 12 December 2011. The amendment history notes only that s 9 (civil penalty) was amended; the exact change is not specified in the source but likely involved updating cross-references or procedural wording. The second amendment was by the Discrimination Amendment Act 2016 (A2016-49), which commenced on 24 August 2016. That amendment altered s 7 (meaning of public participation) by substituting references to vilification offences. Originally, s 7(2) excluded conduct that “constitutes unlawful vilification under the Discrimination Act 1991, section 67” and “constitutes an offence against the Criminal Code, section 750”. The 2016 amendment updated the references to reflect the current section numbers: s 67A of the Discrimination Act 1991 and s 750 of the Criminal Code. The paragraphs were also renumbered as part of the republication. The Act originally contained a transitional provision: s 8(2)(c) and s 8(3) expired on 12 September 2009. Those subprovisions are no longer in force. Section 11, which required a review of the Act after three years, expired on 1 January 2014. There have been no further amendments. The Act is notably static and has not been updated in response to practical experience. The absence of a prescribed penalty amount remains a significant gap that has not been addressed by regulation. The regulation-making power in s 10 has not been exercised, or if it has, no regulation is included in this republication. The Act’s amendment history shows that only minor technical updates have been made. There is no evidence of any expansion of the Act’s scope, such as including defamation proceedings, despite widespread academic commentary about the need for broader anti-SLAPP protections.

The source does not record any reported cases that have interpreted or applied the Protection of Public Participation Act 2008. There are several possible reasons for this. First, the Act is confined to the ACT and applies only to civil proceedings in the Supreme Court and Magistrates Court that may claim damages, excluding defamation. This is a narrow jurisdiction. Second, the penalty provision is currently ineffective because no penalty amount has been prescribed by regulation, reducing the incentive for parties or the Territory to invoke the Act. Third, the improper purpose test under s 6 is relatively demanding: a reasonable person must consider that the main purpose of the proceeding is one of the prohibited aims. That is a high bar, especially if the plaintiff has a plausible legal basis for the claim. Fourth, the Act does not provide a mechanism for an interlocutory strike-out or stay, so a defendant must endure the litigation until a penalty hearing. Many defendants may not have the resources to pursue a penalty application. Fifth, the availability of indemnity costs under the Court Procedures Rules 2006, r 1752 means that a successful defendant can already recover full costs without needing the Act. That rule is more commonly used. It is possible that the Act has been cited in costs arguments even if no penalty order was sought. Without a case index in the source, we cannot confirm. The Act is known in legal circles as a rarely used piece of legislation, often described as “weak” anti-SLAPP law compared to similar laws in other jurisdictions. The ACT Law Reform or parliamentary committee has not instigated further amendments. The absence of litigation history may also reflect that SLAPP suits themselves are rare in the ACT, or that plaintiffs avoid the Act’s purview by bringing proceedings in the Federal Court or by pleading defamation. The Act therefore sits largely unused, a symbolic statement rather than a practical tool.

Several features of the Act can trap unwary litigants or their advisers. The most critical gotcha is that the penalty under s 9 is currently zero. There is no prescribed maximum penalty in any regulation, so the court cannot impose a financial penalty exceeding nothing. This means the Act’s main deterrent is the risk of indemnity costs, which already exists under court rules. A plaintiff who believes the Act poses no risk because they have not seen any penalty imposed may be correct, but they still face indemnity costs. A defendant might assume the Act offers robust protection and be disappointed to learn it provides no damages or strike-out. The second gotcha is the exclusion of defamation proceedings (s 8(2)(a)). A plaintiff who frames a SLAPP suit as defamation is completely outside the Act, regardless of how public interest the defendant’s speech is. Legal practitioners should note that even if the underlying dispute involves public interest commentary, if the cause of action is defamation, the Act does not apply. The third gotcha is that the Act applies only to civil proceedings in ACT courts where the plaintiff “may claim damages”. If the plaintiff only seeks an injunction or declaratory relief, and no damages are claimed or possible, the Act arguably does not apply. A plaintiff could plead only equitable relief to avoid the Act. The fourth gotcha is that the improper purpose test requires the “main” purpose to be one of the listed aims. A plaintiff with a mixed motive may escape liability if the court finds that the genuine legal claim was the main purpose. The Act does not shift the burden of proof, so the defendant or the Territory must adduce evidence. The fifth gotcha is that the Territory might have little incentive to apply for a penalty because any penalty goes to the Territory, but it must expend resources to investigate and apply. The defendant cannot apply themselves; they must rely on the court’s own initiative or a Territory application. A court may be reluctant to act on its own motion without clear evidence. The sixth gotcha is the broad definition of “public participation” includes influence on a “government entity”. This means a person who criticises a government contractor is engaging in public participation, but the exclusions for unlawful entry, property damage, and serious offences are also broad. A protest that involves a trespass or damage to property is not protected, even if the protest is about a public issue. The seventh gotcha is that the Act does not override other laws; a proceeding that is for an improper purpose may still succeed on its merits. The defendant could lose the case and still incur costs. Finally, no regulation prescribing a penalty amount is evident; until one is made, the penalty provision is dead letter.

For a potential plaintiff, the primary rule is to examine the purpose behind any intended litigation that involves a defendant who appears to be engaging in public commentary, protest, or advocacy on a matter of public interest. Before filing, the plaintiff and their legal adviser should document the legitimate legal basis of the claim and ensure that the predominant purpose is to obtain a genuine remedy, not to silence, punish, or drain the defendant’s resources. If the defendant is a known activist or critic of the plaintiff’s business or organisation, the risk of a finding of improper purpose is higher. The plaintiff should consider whether there are alternative ways to resolve the dispute, such as mediation or public statements, that do not involve litigation. If litigation is necessary, the plaintiff should avoid any correspondence or conduct that could be construed as an attempt to intimidate or threaten the defendant into silence. Engaging in settlement discussions that demand the defendant cease public commentary as a condition of dropping the suit may be particularly risky. The plaintiff should also be aware that if the proceeding is filed in the Supreme Court or Magistrates Court and seeks damages, the Act applies. If the claim is solely for an injunction or declaratory relief, the Act may not apply, but that is not guaranteed. For a litigant who is already a defendant in a proceeding that they believe is a SLAPP suit, the first step is to notify the court and the Territory. The defendant should gather evidence of their public participation: records of speeches, social media posts, submissions to government, or protest activity. The defendant should also gather evidence of the plaintiff’s improper purpose, such as threats, demands to stop speaking, or statements showing animus. The defendant cannot apply for a penalty directly, but can bring the matter to the court’s attention and seek a referral to the Territory. The defendant can also make a formal request to the Attorney-General or the Director of Public Prosecutions to apply for a penalty. Additionally, the defendant should make an application for indemnity costs, citing r 1752 of the Court Procedures Rules 2006 and relying on the Act as evidence of improper purpose. Legal practitioners should advise clients both plaintiffs and defendants of the Act’s limited scope. For plaintiffs, the existence of the Act may still be a reputational risk even if no penalty is imposed. For defendants, the Act should not be relied upon as a complete defence; substantive legal grounds (defences, summary judgment) remain crucial. The Territory, if it wishes to enforce the Act, should consider prescribing a penalty amount by regulation to give the s 9 provision some effect. Finally, all parties should monitor the ACT legislation register for any future regulations.