This proposal has been prepared for the Environmental Defenders Office to help address what is seen as a growing problem in South Australia. Over the last decade, many clients of our Office have been subject to threats of legal action because they have spoken out in defence of the environment. In some cases, threats have been directed to individuals and groups who do no more than exercise their legal and democratic right to comment on matters of public interest, such as development proposals. The number of such threats which eventuate in legal proceedings is also growing throughout Australia.

The first section of this paper explores the principle that a free and democratic society must provide for a right of citizens to speak and act freely in relation to matters of public interest. The next two sections deal with the growing trend towards litigation against public participation. In the worst cases, such litigation is aimed primarily at preventing free speech rather than securing legitimate compensation. The paper then examines how other jurisdictions in Europe, North America and Australia have dealt with this problem. Finally, a "draft Bill" is proposed for the eventual consideration of the South Australian Parliament.

The EDO wishes to thank Travis Bover for his research assistance which was provided as part of an internship arranged through the Department of Geographic and Environmental Studies at the University of Adelaide.

Mark Parnell LLB BCOMM MRUP

Solicitor

Environmental Defenders Office (SA) Inc.

25^th October 2001

It is well recognised that an essential quality of any liberal democratic society, is the freedom of its members to engage in debate over matters of public significance. In fact in many jurisdictions throughout the world, this freedom is recognised as a fundamental human right. In the United States for instance, the first amendment of the Bill of Rights guarantees that citizens will have the right to free speech, free press, free assembly and to petition government, a group of rights which together, guarantees citizens the opportunity to participate in public affairs. Similarly, in Europe, the European Convention on the Protection of Human Rights and Fundamental Freedoms recognises in Article 10 that, "everyone has the right to freedom of expression", and that this right includes "…freedom to hold opinions and to receive and impart information and ideas without interference…"

In Australia there is no similarly explicit recognition of such a right. However there have been a number of recent High Court cases on defamation law that have recognised a right to participate in public affairs inherent in our system of representative democracy. For instance in the case of Nationwide News Ltd. v. Wills it was stated that:

Similarly in the case of Theophanous v. Herald and Weekly Times, the court found that implicit in our system of representative democracy, is a freedom to engage in "political discussion", a concept that extends to:

In Australia then, it seems that, like in the USA and Europe, there is at least some recognition of a right to form, debate, discuss, argue and lobby for ideas and opinions on issues of public significance. And it is not too surprising that this should be the case, for as suggested above, such a right is an essential quality of a liberal democratic society. Most obviously, this is because effective representation depends upon the ability of the represented to make their needs, desires and wishes known to their representatives. In other words, the citizens of a democracy should be free to lobby their elected representatives in a bid to bring about favourable government action.

Beyond this however, the right to public participation is also about having the freedom to express your ideas, opinions and grievances in a public forum, where they can be discussed, debated and scrutinized by a collective consciousness, and ultimately, if found agreeable, produce a change in the form and structure of society, and in the ideology of the people of which that society is comprised. In other words, the right to participate in public affairs is about the ability to have a say in how the society in which you live operates, and what sorts of activities are permitted. In a liberal democracy — a society in which sovereignty resides with the people, and everyone is respected as free and equal — this right exists simply by virtue of the fact that you are a member of that society.

Thus, in Australia, as in Europe and the USA, we should expect to be free to engage in activities such as commenting on the actions and abilities of elected representatives, making submissions to government officials, circulating petitions, expressing opinions on issues of public interest through articles, letters to the editor, and media releases, producing paraphernalia such as banners, T-shirts and bumper stickers in order to garner support for a particular cause, and demonstrating the commitment to and strength of support for a cause through activities such as protest marches, boycotts, and in certain circumstances, strikes and perhaps even civil disobedience. Indeed it is through means such as these that some of the changes that our society now prides itself on have occurred. The extension of suffrage to women and the move towards reconciliation with indigenous Australians are good examples. Without the freedom to participate in and contribute to issues of public significance then, our society may well have remained frozen in a state that many of us today can scarcely imagine.

It is also true of course, that the freedom to contribute to public debate can produce seemingly detrimental consequences. In particular, the freedom opens the way for the expression of opinions and claims that are unfounded, untrue, unreasonable, unjust, irrational, or that the majority of us would simply rather not hear. But such opinions and claims are generally quite easy to rebut or otherwise refute, and will therefore fail to produce any significant effects, or attract any significant following. Indeed the reason why we have free public debate is not just so good ideas can come to the fore, but also so unfounded, untruthful, unreasonable, unjust or irrational positions can be exposed as such. In other words, the free public expression of both good and bad ideas plays a role in the evolution of our social ethos and our individual ideology. It is therefore not only acceptable, but also important that both good and bad public participation is freely allowed, for as the famous American Justice Oliver Wendell Holmes Jr. once remarked, "…the ultimate good is better reached by free trade in ideas … [and] the best test of truth is the power of the thought to get itself accepted in the competition of the market…"

Seemingly however, not everyone would agree with the sentiment of Justic Holmes (above), because lately, there has been a growing amount of litigation relating public participation. In fact, every one of the activities listed above, from writing a letter to a member of parliament, to producing paraphernalia in order to garner support for a particular stance on an issue of public significance, has been the subject of complaint in a lawsuit.

For instance in 1993, Bill Ringland, the President of the Clean Seas Coalition in NSW, issued a press release alleging that the Ballina Shire Council was surreptitiously pumping sewage out to sea. In response, the Council decided that rather than simply explaining that it was treated effluent and not "sewage" that was being pumped out to sea, it would instead commence litigation for defamation and the economic tort of injurious falsehood. Thankfully, the court ultimately found in favour of Mr. Ringland on both counts, explaining that it was "the idea of democracy that people are encouraged to express their criticisms, even their wrong-headed criticisms, of elected government institutions, in the expectation that this will improve the quality of the government." Unfortunately it took tens of thousands of dollars worth of legal fees, and months of anxiety for Mr Ringland to be assured that this was the case.

In another example, also from New South Wales, the Galston Area Residents Association responded to the Hornsby Councils’ request for objections to a proposed chicken farm. Soon after doing so however, two individual members of the Association were sued for defamation for statements about the chicken farmers’ practices made in the Association’s submission. Given the defence to defamation of qualified privilege, it was always improbable that the action would succeed, yet the two individuals were still forced to incur the cost and anxiety of a judicial proceeding in order to affirm their fundamental right to express their opinions over what activities should be permitted in the community in which they live.

Other, more local examples of lawsuits arising from participation in public affairs are also easy to find. Recently for instance, the South Australian group Animal Liberation was sued for producing T-shirts designed to garner support for their campaign against a battery hen egg farm. In another recent case, the Conservation Council of South Australia was sued for making comments relating to the construction of the Hindmarsh Island Bridge. Again, both cases are examples of citizens simply making a contribution to a debate over a matter of public interest, yet finding themselves the target of a lawsuit for so doing.

In many ways, this proliferation of lawsuits arising from public participation is simply the result of our increasingly litigious society. Whenever any sentiment of aggrievement arises, the first place many people tend to turn to is their lawyer. This is exacerbated by the highly competitive nature of our society. Commercial organisations and even private individuals feel that any criticism or opposition is an unjustified affront to their personal liberty, and that therefore litigation rather than reasoned public debate is the appropriate response. Worryingly, it is also becoming apparent that in some instances, people are actually deliberately using judicial processes to suppress, discourage and punish free debate on issues of public significance. This well-documented phenomenon has come to be known as a SLAPP — a Strategic Lawsuit Against Public Participation.

Irrespective of the motivation behind the lawsuit however, the effects are the same. Firstly, such lawsuits transform what is and what should be a matter of public debate, into a private legal dispute. Thus, instead of a public discussion, the issue is debated in a private legal hearing; and instead of the focus of debate being the citizens’ concerns, the dispute becomes focused on the perceived legal injuries of the plaintiff. This leaves the question of who is right in the underlying public debate unanswered and indeed, largely undiscussed. The use of litigation in response to public participation therefore directly subverts and suppresses the democratic process of public debate.

Beyond this of course, litigation, or the threat of litigation, also has a significant "chilling effect" on public participation. For many, the prospect of incurring the expense and anxiety of a legal trial causes sufficient intimidation to dissuade them from expressing their opinion on issues of public significance. Indeed, many lawsuits arising public participation actually seem to be designed with this in mind. For instance, such lawsuits often target not only the main "agitators", but also name "ordinary Joes", or include "unidentified persons" as defendants, thus causing even individuals who are only mildly politically active, to fear they may be sued if they do not abstain from public participation. Similarly, such lawsuits typically also seek exorbitant amounts of money, which in itself is quite intimidating, but also places the case in the courts of highest jurisdiction, where the very best and most expensive lawyers are required.

An example of such a lawsuit arose recently when residents in Marrickville Council NSW, called a meeting to discuss their objections to a proposed commercial development in their area. Despite not actually publishing any material that was critical of the development or the developer, the housewife in whose house the meeting was held, was sued for damages amounting to $750 000. After four months of anxiety and encouragement from her family to settle on the developers’ terms, the developer finally dropped the action, but not before causing sufficient intimidation to silence, not only her, but all opposition to the proposal.

Another recent example, although involving only the threat of litigation, arose when publishers and distributors of a book were sent threatening letters claiming that the book had breached various sections of the Trade Practices Act, and that if it was not removed from circulation, legal action would be commenced. Yet, according to s65 of the Trade Practices Act, there was actually no possibility of liability, as book publishers and distributors are explicitly exempted from the operation of the sections which they had reputedly breached. Unaware of this and sufficiently intimidated however, one distributor withdrew the book from sale.

It is cases such these that prompted one US Judge to write, "short of gun to the head, a greater threat to [free] expression can scarcely be imagined". This is indeed an accurate and well-made point, although it could it fact be argued that responding to public participation with litigation is even more of a threat to free expression than a gun to the head, because such lawsuits intimidate not only the defendant into silence, but can also have long lasting effects on the willingness and ability of the public and public interest groups to voice their opinions on issues of public significance. This is unacceptable. Public participation is a necessary and desirable part of our society, and we should not allow people, either deliberately or indeliberately, to unjustifiably suppress, subvert or discourage such participation through the use of judicial processes. The proper response to expression on a matter of public significance is reasoned public debate, not litigation. We therefore need to identify, as one US judge once put it, those disputes which are "…more properly within the political arena than in the courthouse", and ensure that they stay there. The cost of doing otherwise is simply too great.

With this in mind, the remainder of this paper is dedicated to investigating the possibility of a legislative means for ensuring that debate over matters of public significance is kept in the political arena, and out of the judicial arena. To this end, legislative responses to the problem of litigation unjustifiably interfering with the right to public participation from around the world are surveyed. The best elements of each approach will then be drawn upon in developing a legislative response suitable for South Australia.

Perhaps the most obvious way of responding to the problem of lawsuits unjustifiably interfering with public participation, is to create an absolute freedom of expression. This approach is taken in part in many European countries where there is no, or is only limited defamation laws. Instead, when an expression is prima facie defamatory, a right to reply arises. Unreasoned and unfounded expression can therefore quickly be exposed as such, thus preventing any harmful effects that might otherwise arise.

However, right to reply notwithstanding, it could be argued that there are many situations in which defamatory expression should give rise to a cause of action. Furthermore, defamation is not the only cause of action typically instigated in response to public participation. Economic torts, contract law, Trade Practices and Fair Trading provisions, and even the law of conspiracy have also been used. Clearly, there are many situations in which these remedies are used appropriately, and it is improbable that a right of reply would offer an adequate substitute for such remedies. Thus, creating an absolute freedom of expression is probably not the appropriate response to the problem of litigation unjustifiably interfering with public participation.

An alternative approach then, is to isolate just those cases that represent an inappropriate use of judicial processes. This approach is proposed in a British Columbian Bill, which stipulates that a cause of action arising from "public participation" gives rise to a summary hearing, at which the court may decide to dismiss the lawsuit and award damages to the defendant if the plaintiff fails to demonstrate that firstly, the case has a probability of success, and secondly, that the action was not brought for an "improper purpose", "improper purpose" being defined as:

The British Columbian approach then, aims to prevent and deter only those lawsuits that are brought so as to deliberately silence or punish public participation. However, as suggested above, a number of lawsuits brought in response to public participation are not brought for calculated or malicious purposes, but simply arise from a conflict of perceived personal liberty and fundamental democratic rights, and therefore represent only an unjustifiable, rather than a deliberate and malicious interference with the right to public participation. The British Columbian approach might therefore be ineffective, because it is not inclusive of enough. However, the idea of allowing the defendant to recover damages in cases brought for the improper purpose of silencing or punishing public participation would certainly serve as a strong deterrent against the use of judicial processes for such means. For present purposes then, it is perhaps desirable to create a means for summary dismissal based upon unjustifiable interference with the right to public participation rather than improper purpose, but to also create a separate cause of action in which an individual sued for the improper purpose of silencing or punishing public participation can seek punitive and exemplary damages. This possibility of creating a statutory cause of action will be discussed later.

For now though, an alternative approach that seeks only to provide a procedure for summary dismissal, is that taken in California, where all that needs to be demonstrated is that the plaintiff has no probability of success. In other words, the court is asked to make a summary assessment of whether the case is worth hearing. However, not wanting to usurp proper judicial processes, the Californian courts have required only a prima facie showing of facts which if provable at trial would support a judgement, in order to establish a probability of success. This is quite a low standard, and so allows a number of cases go to trial that should perhaps be stopped. But in many ways this precautionary approach is understandable, as the Act effectively requires the court to determine summarily what it would otherwise feel obliged to decide at trial.

A preferable approach then, would be for the legislature to explicitly define activities that are acceptable instances of public participation, and that therefore should not be the subject of litigation. This way, the courts would only be required to determine whether the defendant’s actions fall within the defined class of acceptable public participation, a job they should feel comfortable about doing at a summary hearing. Indeed, there are several states in the USA that have successfully taken this approach.

For example in the states of Massachusetts and Rhode Island, a cause of action relating to first amendment expression (i.e. public participation), which has "reasonable factual support or arguable basis in law", is subject to summary dismissal. Similarly, in the state of Minnesota, there is a procedure for the summary dismissal of lawsuits that materially relate to "public participation", which is defined as "lawful conduct or speech that is genuinely aimed in whole or in part at procuring favourable government action". Problematically however, the Act defines "government" as:

The Minnesota Act’s definition of public participation is therefore rather narrow, and would preclude the many instances of public participation that involve the petitioning of non-government organisations or of the public generally, rather than the government. The Massachusetts and Rhode Island Acts also suffer from a similar deficiency, in that they relate to the first amendment, which of course there is no explicit equivalent of in Australia. Thus, if a legislative response suitable for South Australia is to be developed, an explicitly stated and sufficiently inclusive right to "public participation" must be defined.

One obvious way of doing this is to explicitly list each topic that constitutes public participation. This approach is taken by the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, a European treaty relating to citizen’s rights in relation to environmental matters. However, drafting a list comprehensive enough to cover all topics of public significance, both now and in the future, would be near impossible.

An alternative then, is suggested by case law. As we saw above, the High Court has, with respect to defamation, declared a right to participate in "political discussion", which, to repeat the quote from Theophanous given above, extends to:

Similarly, in the US Supreme Court case of City of Columbia v. Omni Outdoor Advertising Ltd., the court held that protected first amendment expression must be aimed at procuring favourable government action, but interpreted "government" to include the electorate, as well as the legislature and executive.

But perhaps the best definition of "public participation", is that provided by the British Columbian Protection of Public Participation Bill. There, "public participation" is simply defined as:

This is quite a useful and inclusive definition, which, coupled with a purposes section designed to aid judicial interpretation, should offer a sufficiently clear indication of what constitutes public participation, yet do so in a way that provides flexibility so that the concept of public participation can evolve and change over time. Having said this however, it is perhaps necessary to explicitly exempt some issues from being considered public participation. For instance, given that the freedom to participate in public affairs arises from the liberal democratic ideal that we are all free and equal, public participation should not be used to attack this ideal. Therefore, vilification based on race, ethnicity, sex, sexuality or creed should be explicitly exempted.

With ‘public participation’ now adequately defined then, attention must be turned to the question of what is and is not an acceptable exercise of the right to public participation. As suggested earlier, in the broadest sense of the term, public participation can involve anything from writing a letter, to civil disobedience. Yet it is clearly not appropriate, nor desirable for the legislature to advocate all such activities. For this reason criminal activities and civil liabilities arising from physical injury and damage to property should receive no protection, nor should public participation that encourages criminal activities, physical violence, or damage to property. But the immunity from litigation should extend to all other civil causes of action, provided that the immunity does not lead to abusive or unjust situations. To ensure that this does not happen, the Massachusetts and Rhode Island Acts for instance, require that public participation must have "reasonable factual support or arguable basis in law". Similarly, in Minnesota, there must be a genuine aim of "procuring favourable … action". In other words, public participation must not be actuated by ulterior motives.

In my opinion, to properly prevent abusive and unjust uses of the right to public participation, both of these requirements are necessary. Indeed, this also seems to be the position of the High Court of Australia, at least in respect to defamation law. In the case of Lange v. Australian Broadcasting Corporation for instance, the court explained that, in order for "political discussion" to be shielded from defamation laws, it must be reasonable and not actuated by malice. The court’s test for reasonableness however, is quite strict, and for this reason, defamation law in Australia has not been of much use in protecting the right to public participation. For present purposes then, a less strict approach to the requirement of "reasonableness" is necessary.

One such approach is suggested in the Ballina Shire Council Case, discussed above. In this case, the court held that even public participation that ultimately proved to be "wrong-headed" would be considered reasonable, provided that it was not excessively or recklessly "wrong-headed". A suitable test of reasonableness for a South Australian Act that could be drawn from this case, might therefore be to require the court to determine whether a reasonable person of similar disposition would, not necessarily agree with the position itself, but agree that, at the time the public participation was done, the position had a sufficiently arguable basis.

The complete test then, for whether an instance of public participation constitutes an acceptable exercise of the right and is therefore exempt from litigation, would require the defendant to demonstrate that there were honestly held and sufficiently arguable reasons behind the public participation, and that the public participation was motivated in whole or in part, by the aim of influencing public opinion, or promoting or furthering action by the public or by any government body. So for example, encouraging a bank not to do business with a company employing sweatshop labour, or encouraging the public not to buy that company’s products for the same reason, would be immune from civil litigation, provided that labour conditions are a matter of public interest (which they clearly are), the petitioning is based on honestly and reasonably held beliefs about the company’s labour practices, and the action is genuinely aimed at making a statement about what sorts of activities our society should permit. Similarly, commenting on the track record of a developer who is proposing a development in an environmentally sensitive area would be acceptable, if the track record tended to show a history of ignoring environmental concerns, the comments as to the developer’s track record were honestly and reasonable believed, and it was genuine concern for the environment that motivated the action. Finally, holding a blockade to prevent uranium from being loaded onto a ship would not give rise to civil damages, because the mining, transportation, use and disposal of uranium is clearly a public interest issue. However, this is not to say that such actions would not give rise to criminal liability, or that the police would not have the right to break-up the blockade.

As is done in California, the elements of this test could quite easily be established through a prima facie showing of facts in pleadings and affidavit evidence, and if necessary, in testimony at a summary hearing. As a safety measure however, and to allow test cases the freedom to emerge, even if the defendant satisfies these tests, the court could be given the discretion to hear cases that it believes possesses sufficient merit to warrant closer examination. In such cases however, an order should be made for the security of the defendant’s costs and counsel fees, and the case should be fast tracked if possible.

With an appropriate procedure for the summary dismissal of unjustified lawsuits identified then, attention is now turned to the possibility of creating a cause of action allowing a person sued for the improper purpose of silencing or punishing public participation to recover punitive and exemplary damages. Such a cause of action should require firstly, that all of the requirements for summary dismissal are met, that is, that the action that is the subject of litigation constitutes public participation, that there are honestly and reasonably held reasons behind the public participation, and that the actions that are the subject of complaint are genuinely aimed, in whole or in part, at influencing public opinion or promoting or furthering action by the public or by any government body. Beyond this however, the person seeking damages should also be required to show that the lawsuit complained about is or was brought and/or maintained for an improper purpose, in that a principal purpose for bringing or maintaining the proceeding or claim was to dissuade the defendant from engaging in public participation, to dissuade other persons from engaging in public participation, to divert the defendant's resources from public participation to legal proceedings, or to penalize the defendant for engaging in public participation.

Unfortunately, it may prove difficult in practice to establish an improper purpose and therefore receive damages. But in any event, it is expected that, given a sufficient build-up of precedent, the procedure for summary dismissal will serve as an appropriate deterrent against all lawsuits that unjustifiably interfere with the right to public participation, both properly and improperly inspired. Furthermore, because the procedure for summary dismissal provides a quick and inexpensive means of dismissing unjustified lawsuits, the need to make damages available, either as a deterrent or as a remedy, is minimal. However, there clearly are some instances in which damages are appropriate and improper purpose could be demonstrated. The suggested Act therefore includes a statutory tort of improper interference with the right to public participation.

Whilst the law is quite able to deal with litigation, the situation is not so simple with threats of litigation. In many ways, this is a more serious problem because the recipient of a letter threatening legal action is placed in the difficult position of either calling the sender's bluff or aquiescing to the demands. In the latter case, the validity of the sender's claims are never tested and may too late be found to be baseless.

One approach to this problem would be to enable a person who has received threats of litigation to approach the Court seeking a declaration that the conduct complained of amounts to public participation and is therefore protected. Such a finding could be accompanied by orders for costs and compensation. This would provide an early opportunity for the recipient of legal threats to assess the appropriateness of their behaviour and their exposure to the risk of legitimate legal proceedings against them. In South Australia, the only other avenue of redress for the recipients of groundless threats of legal action is the complaints procedure administered by the Legal Practitioners' Conduct Board. This mechanism is too slow to be of practical use and only addresses the conduct of the lawyers concerned, not whether the rights of the recipient of the threats have been breached.

The remainder of this paper details the proposed Act. However, although it is written in the form of an Act, it is intended only to provide instructions for drafting. It simply sets out all of the elements of the proposed law, and provides some suggestions for the structure, content and wording of the Act, much of which is taken from various other laws from around the world, in particular the British Columbian Bill.

If this proposal receives political support, it is to hoped that a further version could be prepared with the assistance of Parliamentary Counsel.

Section 1 - Short Title

Section 2 — The Purposes of the Act

Section 3 — Definitions

Section 4 - The Right to Public Participation

Section 5 - Application for Declaration as to Public Participation

Section 6 - Application for Summary Dismissal

Section 7 — The Statutory Tort of Improper Interference with the Right to Public Participation

This Act may be cited as the "Protection of Public Participation Act of 2001".

The purposes of this Act are to:

(a) Protect and encourage public participation, and dissuade persons from threatening, bringing or maintaining proceedings or claims that unjustifiably interfere with this right, by providing;

(b) Preserve the right of access to the courts for all proceedings and claims that do not unjustifiably interfere with the right public participation.

In this Act:

"court" means Supreme Court of South Australia;

"government" includes the federal, state or a local government, and any branch, department, agency, official, employee, agent, or other person with authority to act on behalf of the federal, state or a local government;

"proceeding" means any action, suit, matter, cause, counterclaim, appeal or originating application that is brought in any court or tribunal, 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 action by the public or corporations or by any government body, in relation to an issue of public interest, but does not include communication or conduct that:

1. constitutes vilification based on race, sex, sexuality, ethnicity, nationality or creed, [per relevant State and Commonwealth legislation]
2. constitutes a criminal action,
3. causes or threatens physical injury,
4. causes damage to property,
5. attempts to incite others to cause or threaten physical injury or damage to property,

"reasonable costs and fees" shall be determined according to procedures established in the court rules.

All people enjoy a right to public participation, as is defined by this Act.

(1) If a person against whom threats of legal proceeding are brought considers that the whole of the threatened proceeding or any claim within the proceeding is inconsistent with the right to public participation declared in section 4, the person may bring an application for a declaration that the conduct complained of is public participation within the meaning of this Act.

(2) When an application is brought under subsection (1), the application must be heard within 60 days of service, unless the court deems this inappropriate, and

(3) In any application made under subsection (1),

1. a successful applicant shall be entitled to recover costs and his or her legal counsel’s fees.
2. An unsuccessful applicant may be required to pay the costs of the respondant unless the Court finds that the application was reasonably made and in the public interest.

(4) At the hearing of the application, the applicant must, on the balance of probabilities, demonstrate to the court that:

1. The actions complained of constitute "public participation" within the meaning given to the term by this Act,
2. The actions complained of were based upon honestly and reasonably held beliefs, where "reasonableness" shall be satisfied by demonstrating that a reasonable person of similar disposition would agree that, at the time of the public participation, there was a reasonably arguable basis for the public participation.

In making its determination on these issues, the court will consider pleadings, affidavit evidence and if necessary, will receive testimony at a summary hearing. In order to establish the required standard of proof, the court shall require only a prima facie showing of facts which, if true, would support the applicant’s claims.

(5) No determination nor the fact that such a determination was made under subsection 1 will be admissible in evidence at any later stage of the case, or in any other case.

(6) An order made under subsection (1) is appealable, subject to existing rules and procedures.

(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 is inconsistent with the right to public participation declared in section 4, the defendant may bring an application for an order to dismiss the proceeding or claim, as the case may be.

(2) When an application is brought under subsection (1),

(3) In any application made under subsection (1),

1. a prevailing defendant shall be entitled to recover costs and his or her legal counsel’s fees.
2. if the court finds that an application made under subsection (1) is frivolous or is solely intended to cause unnecessary delay, the court may award costs and reasonable legal counsel’s fees to the prevailing plaintiff.

(4) At the hearing of the application, the defendant must, on the balance of probabilities, demonstrate to the court that:

1. their action(s) constitute "public participation" within the meaning given to the term by this Act,
2. their actions were done, in whole or in part, in the aim of influencing public opinion, or promoting or furthering action by the public or by any government body, in relation to an issue of public interest, and
3. their actions were based upon honestly and reasonably held beliefs, where "reasonableness" shall be satisfied by demonstrating that a reasonable person of similar disposition would agree that, at the time of the public participation, there was a reasonably arguable basis for the public participation.

In making its determination on these issues, the court will consider pleadings, affidavit evidence and if necessary, will receive testimony at a summary hearing. In order to establish the required standard of proof, the court shall require only a prima facie showing of facts which, if true, would support the defendant’s claims.

(5) No determination nor the fact that such a determination was made under subsection 1 will be admissible in evidence at any later stage of the case, or in any other case.

(6) If the conditions in subsection (4) are satisfied, yet the court believes that the action still contains substantial merit as a compelling question of law or for some other reason, the court may elect to hear the matter in full. In such a circumstance, costs and counsel’s fees for the hearing should be awarded to the defendant, there should be an order for security of the defendant’s costs and legal counsel’s fees arising from the trial, and if appropriate, the matter should be fast tracked.

(7) An order made under subsection (1) is appealable, subject to existing rules and procedures.

(1) If a person against whom a proceeding is or was brought or maintained, considers that the whole of the proceeding or any claim within the proceeding has been, was brought, or was or is being maintained for an improper purpose, that person may initiate a proceeding so as to seek an order for punitive or exemplary damages against the person who has brought or maintained the improper proceeding.

(2) At the hearing of the proceeding described under subsection (1), the plaintiff must, on the balance of probabilities, demonstrate to the court:

1. that the action(s) that are the subject of complaint in the questionable lawsuit constitute "public participation" within the meaning given to the term by this Act,
2. that those same actions were done, in whole or in part, in the aim of influencing public opinion, or promoting or furthering action by the public or by any government body, in relation to an issue of public interest,
3. that those actions were based upon honestly and reasonably held beliefs, where "reasonableness" shall be satisfied by demonstrating that a reasonable person of similar disposition would agree that, at the time of the public participation, there was a reasonably arguable basis for the public participation, and
4. that the action is or was brought or maintained for an improper purpose, in that a principal purpose for bringing the proceeding or claim is to:

1. dissuade the defendant from engaging in public participation,
2. dissuade other persons from engaging in public participation,
3. divert the defendant's resources from public participation to the proceeding, or
4. penalize the defendant for engaging in public participation.

(3) If the plaintiff successfully demonstrates the satisfaction of these requirements to the court, the plaintiff may receive one or all of the following orders:

1. that the defendant pay the plaintiffs’ costs and reasonable legal counsel expenses incurred in pursuing rights or remedies available under or contemplated by this Act.
2. that punitive or exemplary damages be awarded, in an amount that the court deems appropriate.

If the proceeding that is brought for an improper purpose is still being maintained, the court shall effect its immediate dismissal.

(4) An order made under subsection (3) is appealable, subject to existing rules and procedures.