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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-27 Daily Xml
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PROTECTION OF PUBLIC PARTICIPATION BILL

Introduction and First Reading

The Hon. M. PARNELL (16:03): Obtained leave and introduced 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. Read a first time.

Second Reading

The Hon. M. PARNELL (16:04): I move:

That this bill be now read a second time.

This is the same bill I introduced into this place at the end of 2006. I will not repeat now all the things I said over two days at the end of 2006-07 by way of explanation as to why the bill is needed.

I will refresh members' memories very briefly to remind them that I referred in particular to two South Australian case studies that showed why this legislation was needed. I referred to the case of Entech at Devon Park, where two women were sued by a factory owner for their activities in advocating for a reduction in pollution and cleaner air in their environment. I also referred to the case of the Holcon development at Walkerville, where elected members of the local council were threatened with legal action for opposing a development.

They were two particular South Australian case studies and I referred to a large number of other studies and a large volume of research that has been done on this topic around the world. The subject is often referred to as the problem of strategic litigation against public participation (SLAPP) suits. My bill is designed to provide some right of response to people who have had their democratic right of free speech infringed by the actions of (most commonly) big corporations and their lawyers.

In my previous contributions on this bill, I was prepared to name and shame some of the legal professionals in South Australia who engage in this type of intimidating behaviour, but what has prompted me to bring the bill on again now is yet another shameful South Australian example of corporate bullying behaviour. The bill I introduced previously lapsed without it going to a vote, and I am keen to make sure that this bill stays on the Notice Paper until it is eventually passed.

The new case study that I want to refer to is one that all members will be familiar with, and that is the Le Cornu site in North Adelaide. All members would be aware of this site. It is a prime piece of real estate in Adelaide. It is a site that has remained vacant for, as I understand it, coming up to two decades. It has been a hot political football, with blame flying backwards and forwards as to why development proposals in the past have not succeeded on that site. What we now have is a situation where a development is likely to proceed, and that is a development by the Makris Group.

The current situation in terms of development approvals is that the Makris Group proposal was declared to be a major project on 1 May 2007; a development report was prepared by the proponent and released for public comment on 23 January this year; and we are now in a six-week public consultation period which expires on 5 March 2008. As part of the statutory process for major projects, there was also a public meeting held on Tuesday 19 February at the North Adelaide Community Centre.

So, that is the Le Cornu situation that members would be aware of. But what members might not be aware of is that not everyone is particularly happy with the way the development is proceeding on that site. A residents group has been formed to challenge the development and to query whether it is the best development for North Adelaide, and for that site in particular.

As part of a campaign the residents prepared a brochure. This brochure was, as I understand it, circulated in some parts of North Adelaide. It was a simple two-sided A4 brochure, with the heading 'It's not a done deal'. The brochure also states what many of us say when faced with a development that has progressed a certain way down the approval path: 'But there's nothing I can do.'

That statement is answered by saying, 'Yes there is, act now! Voice your concerns—see overleaf.' When you go through the brochure and look at what is overleaf, you might wonder what they are exhorting us to do. Will it be a call to arms, an exhortation to violence or rebellion, is it urging the overthrow of the capitalist system? No; what the brochure exhorts people to do is to 'have your say, send your submissions, call talkback radio, call and write to newspapers, council elected members and parliamentarians.' Now, that is exactly the advice that every one of us gives to our constituents every day when they ask us how they can engage in the political process, how can they have their say.

The Hon. Sandra Kanck interjecting:

The Hon. M. PARNELL: As the Hon. Sandra Kanck says, it is called being part of a democracy—and that is exactly what it is. The other thing the brochure exhorts people to do is to attend the public forum—the public forum that is part of the statutory process under the Development Act. So, it was not organised by these people; it is a statutory process. The brochure says, 'Come to the public forum...and ask questions of the Makris Group.' This is a fairly tame exhortation to people to engage in public debate.

It also urges people to 'view the plans and read the report for yourself', and it gives the address where the plans can be found. Finally, it tells people to write a submission to the minister through the Assessment Branch of Planning SA, which is exactly the way the legislative scheme has been designed to operate. The flyer also invites people to come to the site and 'we'll show you what 23 metres looks like' (23 metres being the height of the building).

That is on the back of the flyer. Let us return to the front of the flyer, which I will describe in a few words. It is basically set out in two columns, one called 'Myth' and the other called 'Fact'—a fairly standard approach to informing the public of a situation. For example, the first myth is that the development has already been approved and, under the column headed 'Fact', the flyer says, 'No, the development has not been approved.'

It goes on with various myths and facts. One of the myths is that the developer has considered community opinion. Opposite that, in the 'Fact' column, it says, 'No, developer ignored public opinion and made considerable financial donations to political parties.'

The Hon. Sandra Kanck interjecting:

The Hon. M. PARNELL: I will come back to which political party and why those words are the cause of so much grief to the Makris Group. The final thing I would like to say about the brochure is that it provides the names, phone numbers and email addresses of three North Adelaide residents and invites people to contact them for more information. So, this is not some scurrilous, anonymous flyer full of vitriol and lies: it is, in fact, a very responsible flyer that invites people to engage in debate over what—I think we would all agree—has been one of the most controversial developments in Adelaide in recent decades.

What does this have to do with my protection of public participation bill? At face value it seems that these residents are well organised, and are behaving themselves appropriately and responsibly; what possible need could they have for the type of protection offered by my bill? Well, it is at this point that we see enter the Makris Group and its lawyers. Two weeks ago a North Adelaide resident received a letter from the Adelaide commercial law firm Cowell Clarke. The letter was from a Mr Jon Clarke, a partner of that firm, and I would like to read parts of it into Hansard, because I believe it provides a perfect example of why my bill is necessary. The letter commences:

I act for the Makris Group of Companies and its owner, Mr Con Makris. My client has provided me with a copy of a flyer entitled 'It's not a done deal!' relating to the development of my client's site at 88 O'Connell Street, North Adelaide...I note from the flyer that you purport to represent 'concerned North Adelaide residents' and that a meeting has been scheduled to take place at the site on Saturday, 16 February 2008 from 11am to 1pm.

I note also that people are invited to participate in a public forum concerning the development on 19 February 2008 at the North Adelaide Community Centre.

Whilst my clients naturally have no objection in principle to interested residents and others viewing the site and expressing their views, any such statements must not be defamatory of my clients.

My clients note with concern certain statements made in the flyer and in particular reference to political donations. That particular statement is defamatory of my clients. The imputation that any reasonable reader would infer from that comment is that my clients have improperly made a donation to a political party in order to obtain an advantage in relation to the development. That statement and the imputation arising from it is untrue.

Unless you or any other person at the meeting has evidence that the statement is true then you are on notice that any repetition of the material contained in the flyer will not be privileged. The making of such a statement or statements of a like effect will be vigorously pursued by my clients as they are false and defamatory.

My clients will take such action as advised without further notice against anyone who makes defamatory remarks of my clients or makes statements which are a misrepresentation or are otherwise untruthful.

You should understand that neither you nor any other person who attends the gathering (at the site) are invited onto the site (which is my clients' land). Any entry onto the site will be unlawful.

My clients will take such action as advised against any person who enters upon the site without authority or causes any damage to or upon the site.

Any injury or damage caused to any person who enters the site without authority will not be the responsibility of my clients.

Yours faithfully, Cowell Clarke, per, Jon Clarke, Partner.

What do we make of this? First, there is the suggestion that the statement in the flyer that the developer made political donations is false and defamatory. I invite all members to go back to the debate in this council on 2 May 2007 where the Makris Group's political donations were the subject of extensive debate. It was raised by me in question time, and it was raised by the Hon. Rob Lucas in a motion before the council. You can look at the Australian Electoral Commission website and you will find the Makris Group and its donations to the Australian Labor Party, so the statement that the developer has not made donations to political parties is itself false.

The other thing I think should be pointed out is that the issue of the developer giving political donations featured prominently in The Australian newspaper of Thursday 3 May. Michael Owen may well have had this story published in both The Advertiser and The Australian but I am not 100 per cent sure. The story was under the heading 'Developer gave ALP $180,000'. The first part of that article states:

A development firm twice helped by state government fast-tracking in the past month has used associated companies to donate more than $180,000 to the Labor Party, it has been revealed.

The opposition says the Makris Group, which this week was granted major project status for its $150 million development of the former Le Cornu site in North Adelaide, was the second biggest donor to Labor last financial year, only being outspent by party funding body ALP Holdings.

It goes on to specify exactly where those donations come from. Then Michael Owen's article continues:

Makris chief executive John Blunt said on Wednesday that the company had donated money to the Labor Party because 'we want to make our projects happen.'

It goes on to say:

He would make no further comment yesterday.

So, this is clearly a matter that has been on the public record.

In fact, I will even take it one step further and remind people who may listen to the ABC early morning program hosted by Matt and Dave that on 2 May 2007 the presenters interviewed John Blunt, the CEO of the Makris Group, on their program. He was asked about donations to political parties. Whilst he was reluctant to give details of the amount the Makris Group had given to the Labor Party, it is clear from the Australian Electoral Commission returns that there was at least the sum of $32,000 and, due to the Hon. Rob Lucas' investigations, that sum has gone up to $180,000 when you take into account related companies. During that interview on ABC Radio, Mr Blunt gave an extraordinary insight into the way in which development decisions are made in this state. In responding to a question from David Bevan about why the Makris Group chose to donate to Labor, John Blunt replied:

I mean, we have got business interests, as well, so we want good governance. We want to see things happen in this state.

Matthew Abraham interjected:

You want to be looked after, too?

In response, John Blunt agreed and said:

Yeah, we want to make our projects happen, that's for sure, but, you know, that's a part of the way the system—you know, politics—works here.

So this material has been on the record for over a year, yet, when the residents of North Adelaide raised it in a very mild and obscure way in a community leaflet, they were subject to bullying, intimidating and threatening tactics from the firm of Cowell Clarke acting on behalf of Makris. I think that this is shameful behaviour, and that naming and shaming of the companies and their lawyers is an appropriate thing to do in this place.

I would also ask honourable members to ponder this: if the Makris Group is so worried about these statements being made in the public realm, why does it not sue The Advertiser? Why has it not sued Michael Owen? Why has it not sued the Hon. Rob Lucas? Why has it not sued me? I have not just said these things in parliament; I say these things whenever I give lectures to students of political science at our universities. I talk about political donations. I talk about facts on the record—which companies give to which political parties. I think that is an appropriate thing for us to do.

Let me now refer to the impact that this lawyer's letter has had on the residents of North Adelaide. I spoke to one resident who was a fairly articulate and robust person and whose reaction was one of outrage. This person said to me, 'How dare they? Who does he think he is?', speaking of Makris's lawyer. 'I'm entitled to my opinion', was another thing they said. 'I'm exercising my democratic right.' Then, in relation to the latter part of the letter, they queried whether the developer was proposing to have people on the site taking violent action against those who turned up to have a look at what the height of the development might look like.

However, there were other residents who clearly were not so robust in their response to this letter. What I have been told by people involved with this campaign is that a number of people are now too scared to engaged in debate on this topic. They have received a lawyer's letter, and they are worried about what the implications might be. They are scared to go to public meetings.

Most people do not have a law degree, and most people do not know that companies cannot sue for defamation: that was a change to the law made a couple of years ago. Most people do not know that truth is a defence to a charge of defamation, and most people do not know, or would not know, that the Makris Group's prospects of success in any defamation action based on that leaflet are so remote as to be laughable. Most people do not fully appreciate that lawyers—or, at least, many lawyers—in this town are simply guns for hire who will do whatever their clients ask of them regardless of the merits of the case.

I think it is important that I put on the record this latest case of corporate legal bullying in South Australia. I invite members to support the bill. We cannot stop this type of bullying behaviour. We cannot stop the Makris Group, and we cannot stop Cal Clark or Mr John Clark from behaving in this bullying, threatening and unprofessional manner, but what we can do is give an opportunity for citizens to be able to respond and try to nip this type of behaviour in the bud.

I want to give citizens the right to be able to go to the Magistrates Court to get a declaration that they are simply exercising their democratic right to participate in public debate and to hear from the magistrate that they are behaving properly, and therefore the developer and their lawyers should back off, and that is what my bill does.

In the absence of a bill of rights and in the absence of a constitutional right of free speech, we do need to create these additional statutory rights. The right to public participation is a fundamental part of our democracy, and I urge all honourable members to support this bill.

Debate adjourned on motion of Hon. I.K. Hunter.

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