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 only limited defamation laws. Instead, when an expression is prima facie defamatory, a right to reply arises. In this way unreasoned and unfounded expression can 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 this hearing 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" is defined as:

The British Columbian approach 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 sufficiently broad. However, the idea of allowing a defendant to recover damages in cases brought for the 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 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 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 allows a number of cases to go to trial that should perhaps be stopped. Yet, 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 would be for the legislature to explicitly define activities that are acceptable instances of public participation and that 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 with which courts should feel comfortable at a summary hearing. Indeed, there are several states in the USA which 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 which materially relate to "public participation". Public participation 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 which 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, of which there is no explicit equivalent 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 or element which 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 citizens' 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 nearly impossible.

An alternative is suggested by case law. As we saw above, the High Court has declared, with respect to defamation, 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.

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 but flexible indication of what constitutes public participation thereby allowing the concept of public participation to 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, 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 probably not appropriate or desirable for the legislature to advocate all such activities. For this reason, criminal liability and civil liabilities arising from physical injury and damage to property should receive no indemnification, nor should public participation which encourages criminal activities, physical violence, or damage to property. Yet, 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. An example of an approach designed to ensure that this does not happen is that adopted in the Massachusetts and Rhode Island Acts. These 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.

Aruably, 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 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 occurred the position had a sufficiently arguable basis. This, it is hoped, would not only allow ‘wrong-headed’ public participation when appropriate, but would also provide a sliding scale of reasonableness as the disposition of each person, and therefore the standard of reasonableness expected, could vary.

Using this approach, different standards would apply to different sections of society. For example, the mass print or electronic media would face a high standard of reasonableness, similar to that required by the Lange defence. This is because the media has an influential position within the community and greater access to resources than most individuals. On the other hand, a local group formed out local environmental concerns, would not be subjected to such a strict standard. Indeed, the feelings and opinions of such groups are often not expected to be necessarily correct, well informed or rationally based. Nevertheless, it is important and valuable for our democracy that such positions can be freely voiced so that they may be addressed if necessary, or shown to be untrue or unfounded. The proposed test reflects this ideal, and therefore strikes an appropriate balance between the sometimes-competing rights to free expression and access to civil remedies.

The complete test 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 least in part, 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 and the comments as to the developer’s track record were honestly and reasonable believed and also, it was at least in part, motivated by a genuine concern for the environment. 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 which it believes possess sufficient merit to warrant closer examination. In such cases, 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, attention is now turned to the possibility of allowing a person sued for the purpose of interfering with their right to 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 which 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, the person seeking damages should also be required to show that the proceeding is or was brought or maintained for the principle purpose of either dissuading the defendant from engaging in public participation, dissuading other persons from engaging in public participation, diverting the defendant's resources from public participation to legal proceedings, or penalizing the defendant for engaging in public participation.

Unfortunately, it may often prove difficult, impractical or prohibitively expensive to establish these requirements and therefore receive damages. For this reason, perhaps the procedure for summary dismissal should also contain a deterrent in the form of costs and damages. An even more effective deterrent however, would be to give the courts the power to deny the lawyer of an unsuccessful plaintiff the right to charge for services associated with the matter if, in the court’s opinion, the proceeding so obviously related to protected public participation that commencing the proceeding can be considered unreasonable. This provision is quite necessary, because many plaintiffs that bring lawsuits in response to public participation willingly incur costs and damages, content in the knowledge that, although they may have lost in court, they have won in the real world because they have succeeded in silencing public opposition. It is therefore up to lawyers to refuse to act as an accomplice in this deplorable practice. Unfortunately, it seems necessary to create the threat of damages to inspire them to do so.

With the inclusion of appropriate deterrence measures, along with the ability to expediently and inexpensively dispose of unjustified lawsuits through the procedure for summary dismissal, the proposed Act goes a long way towards achieving its goal of protecting justified public participation. One factor remain ing however, is the effect of threats of legal action on the right to public participation. In many ways this is an even more serious problem than litigation unjustifiably interfering with the right to public participation, because the recipient of a letter threatening legal action is placed in the difficult position of either calling the sender's bluff or acquiescing to their 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 also be accompanied by orders for costs, compensation or sanctions against lawyers in order to provide deterrence. 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. It would also serve as a deterrent against the unprofessional and harmful practice of intimidation through groundless threats of legal action. At present, the only other avenue of redress for the recipients of such groundless threats 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.