Slapping on the Writs:
Defamation, Developers and Community Activism

Brian Walters

University of New South Wales Press 2003
A book review by Danny Yee © 2004
The use of legal actions or threats of legal action to silence critics is common enough to have produced an acronym, SLAPP, for Strategic Lawsuits Against Public Participation. In Australia, with complex defamation laws that favour plaintiffs, these most often take the form of defamation writs — and a lack of any formal protection for free speech makes them a particular menace. In Slapping on the Writs Australian lawyer Brian Walters, drawing on first-hand experience, gives a short but effective explanation of the problem and a call for reform.

After explaining the background, he presents eight case studies. Most of these involve attacks by developers against community activists: they include the publication of Forest-Friendly Building Timbers and the Hindmarsh Island and Hinchinbrook Island cases. There is no attempt to quantify how widespread the problem is, but these high-profile examples give a feel for the power of lawsuis to silence community debate of public issues. (The "Green" focus may distract some readers, but the problems clearly extend much more broadly.)

Walters also covers the High Court's finding of a constitutionally implied freedom of political speech in the Theophanous case, and the narrow restriction of that in the Lange case.

"The constitutional limits of free speech are debated in many countries. Except for the short period around the time of the Theophanous case, there are no such debates in this country. The law recognises no constitutional protection of free speech. In this respect, our democracy is vulnerable."

He concludes with some proposals for reform, modelled on North American laws: there should be freedom to speak about corporations, on matters of public interest, about the performance of public officers, and without fear of unspecified damages. Appendix 1 contains a draft "Protection of Public Participation Bill", suitable for Australian states.

Other appendices offer an overview of defamation law in Australia, with a glossary of terms, and an extract from William Deane's judgement in the Theophanous case. These are useful, but Slapping on the Writs is not a legal guide — rather than advising those subject to intimidatory legal attacks, its aim is to inspire law reform to prevent them happening. Walters' presentation is compelling, but any change seems distant.

February 2004

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%T Slapping on the Writs
%S Defamation, Developers and Community Activism
%A Walters, Brian
%I University of New South Wales Press
%D 2003
%O paperback
%G ISBN 0868404632
%P 95pp