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Jeremy Kennedy - PartnerMcCullough Robertson Lawyers

Dealing with Demonstrations and Protestors – Legal Risk + Response

26 July 201112:15pm – 12:35pm

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Case example 2 – Port Waratah Coal Services

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Risk Injury or death of protestor(s) Injury or death of employee/contractor Loss of production/cost Reputational issues Prosecution by regulators(?) Civil claims

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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

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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

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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

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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

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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)

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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)

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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

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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

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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

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Contact detailsPresenter: Jeremy KennedyPosition: PartnerDirect line: 02 4924 8999Email: jkennedy@mccullough.com.au