The trend to use compensation orders against protesters began to emerge against forest protestors in the 1990s. Section 77B of the Victims Act provides that following conviction for an offence, the court may order the offender to pay compensation to an aggrieved person for any loss incurred. The court can make an order on its own initiative or on an application made to it by or on behalf of the person aggrieved.
On 26 September 2010 climate activists Carly Phillips, Scott Daines, Matthew Breen, Shaun Douglas, Jamie Pomfrett, Scott McKenzie, and Ned Haughton were involved in a significant climate change protest at the world’s largest exporting coal port, the Port of Newcastle. They recently defeated a serious compensation claim brought against them under the Victims Act.
Activists entered coal terminals and climbed onto coal loaders at Carrington and Kooragang Island. Some protestors attached themselves to the loaders. They were charged with and pleaded guilty to remaining on enclosed lands, which carries a maximum penalty of $550.
In this particular case the activists initially faced an application made by police for a claim for compensation by Port Waratah Coal Services (‘PWCS’) for $619 000. After a two-day defended hearing, on 3 March 2011 Magistrate Elaine Truscott delivered a comprehensive judgment in which she dismissed the claim for compensation. She held that first, the prosecution and PWCS failed to establish any actual loss; second, PWCS made the application for the wrong purpose, namely, to deter the protestors from future protests rather than because it wanted compensation for any loss.
This case confirms in order to obtain an order for compensation under the Victims Act there must be evidence of actual loss on the part of the aggrieved person seeking compensation. There must also be evidence of a direct causal link between the criminal act that the defendant is guilty of and the actual loss incurred.
Magistrate Truscott made a number of observations relevant to future acts of civil disobedience on the part of a climate activist relative to the operation of the Victims Act, including:
- Compensation may only be ordered for actual loss not some other purpose;
- It is irrelevant whether the person aggrieved is a corporate victim or an individual real person. In this regard the Court said ‘I do not think that PWCS should be deprived of compensation because of a perception that the protestor is a small David, noble and erstwhile, against a global Goliath bent on polluting the world for financial gain.’
- The seriousness of the offence committed does not matter nor affect the magnitude of the compensation claim sought. What is important is the impact the offence has actually had upon the aggrieved person;
Magistrate Truscott sent a public message to the climate activist:
Any protestor who enters PWCS or other coal loading facilities are on notice that if the outcome of their actions results in loss, which is proven, they are liable to have a compensation liability and one they cannot afford as the quantum is so huge.
She also sent a public message to the corporate entity:
Corporations such as PWCS are also on notice that if a claim for compensation is being made the actual loss need be proved which will involve proper figures and sums, the incurrence of accountant fees and the like.
SUE HIGGINSON is a lawyer at the Environmental Defender’s Office Ltd (NSW).