12615247v1
Jeremy Kennedy - PartnerMcCullough Robertson Lawyers
Dealing with Demonstrations and Protestors – Legal Risk + Response
26 July 201112:15pm – 12:35pm
1
12615247v12
Case example 2 – Port Waratah Coal Services
12615247v13
Risk Injury or death of protestor(s) Injury or death of employee/contractor Loss of production/cost Reputational issues Prosecution by regulators(?) Civil claims
12615247v14
Risk - Legal responsibilitiesOccupational Health and Safety Act 2000 (NSW) duty of care to non-employees – Section 8(2)
must ensure people (other than employees) are not exposed to risks to their health and safety
duty to trespassers? duties of controllers of work premises – Section
10
12615247v15
Risk - Legal responsibilities Work Health and Safety Act 2011 (NSW)
duty of manger or controller of the workplace to ensure health and safety of any person (so far as reasonably practicable) – Section 20
duties of other persons at the workplace to take reasonable care for own health and safety – Section 29
Common law duties of care owed by owners and occupiers
12615247v16
Response - Public order powers
Law Enforcement (Powers and
Responsibilities Act) 2002 (NSW)
Major Events Act 2009
(NSW)
Terrorism (Police Powers) Act 2002 (NSW)
Crimes (Criminal Organisation Control) Act 2009 (NSW)
Inclosed Lands Protection Act 1901 (NSW)
Defence Act 1903 (Cth)
Key legislation
12615247v17
Response - Public order power examples Terrorism (Police Powers) Act 2002 (NSW)
a ‘terrorist act’ includes advocacy, protest, dissent or industrial action done with the intention of advancing a political, religious or ideological cause and with intent of intimidating the public or a section of the public or government – Section 3
police authorised to exercise special powers Inclosed Lands Protection Act 1901 (NSW)
special protections for ‘inclosed lands’ offence to enter enclosed land without the consent of the
owner or occupier of the land – Section 4
12615247v18
Response - Civil actions and remedies Injunctions Binding over orders Tort actions
Interference with contractual relations Intimidation Nuisance Injury to trade and business Trespass
Victims Support and Rehabilitation Act 1996 (NSW)
12615247v19
Case example 1 – Port Waratah Coal Services Port Waratah Coal Services brought an action
against 7 of the Rising Tide activists for $525,000 in victims compensation
Sought compensation under s77B of the Victim’s Support and Rehabilitation Act 1996
Magistrate Elaine Truscott dismissed application for compensation PWCS could not prove actual loss suffered and any money
awarded was to be given to charity (not compensation)
12615247v110
Case example 2 – Newcastle Coal Infrastructure Group protestors from ‘Rising Tide’
activist group entered the NCIG Kooragang Island export coal terminal site on 26 September 2010
conduct resulted in potential breaches of OHS Act
possible civil actions against protestors included the torts of interference with contractual relationships, intimidation, nuisance and trespass
breached Inclosed Lands Protection Act 1901 (NSW) and other relevant acts
12615247v111
Case example 3 – Macquarie Generation Two activists from Camp for
Climate Action 2010 chained themselves to a conveyor belt on land belonging to Macquarie Generation
The conveyor belt transported coal to the Bayswater power station
The activists were removed by police rescue and charged with trespass
12615247v112
Practical strategies to limit risks Warn trespassers of hazards and risks ‘Soft approach’ or ‘hard approach’
Soft approach: engage with protestors engage with police develop a plan
Hard approach pre-emptory legal action post protest legal action – set an example
12615247v113
Contact detailsPresenter: Jeremy KennedyPosition: PartnerDirect line: 02 4924 8999Email: [email protected]