“SLAPP” is short for “Strategic Lawsuit Against Public Participation“. They are lawsuits brought by large corporations intended to discourage people from protesting, speaking out or taking non-violent direct action.

The most famous SLAPP case in Australia was the Gunns 20 lawsuit, a five-year-long epic trial against forest campaigners, authors, a local resident, doctors, the Wilderness Society, the Huon Valley Environment Centre and two Greens politicians, Bob Brown and Peg Putt. The case was an embarrassing public relations disaster for Gunns, who eventually dropped the case after spending millions of dollars on the legal case.

Last year Gunns initiated another SLAPP suit against 13 climate activists, the Triabunna 13. The case is still in court.

The Rising Tide 7 is a new twist in SLAPP suits: rather than trying to sue people in a civil court, companies have started using the Victims Support and Rehabilitation Act (designed to protect victims of violent crime) to seek compensation outside of the civil courts. While civil liability is limited to the defendants’ ability to pay, victim’s compensation is enforced by the State Debt Recovery Agency and failure to pay can lead to cancellation of drivers licenses and car registration, property seizure, community service orders and jail time. The burden of proof is much lower and the order is made by a judge in a criminal court to accompany a conviction (in this case “remain on inclosed lands”, more commonly known as trespassing). The case is prosecuted by the police rather than the corporation.

Such victim’s compensation claims have been attempted three previous times in New South Wales (against forest activists in Eden, against Rising Tide at the Tomago Aluminium Smelter and again after a coal train blockade in Newcastle) but until now they have not been successful. However, in most previous cases the prosecution was unable to prove a causal connection between the charge and any loss of profits.

PWCS originally notified the Rising Tide 9 (which later dropped to seven) that they were intending to claim $97,000 on September 26, the day of the action, which they increased to $236,000 on October 26, the first hearing. By that afternoon the claim had been increased to $619,331, a figure that they did not substantiate. Magistrate Elaine Truscott set aside two days for hearing, January 31 and February 3, in order for evidence to be heard. Newcastle Coal Infrastructure Group, which operates the new third coal loader on Kooragang Island, originally notified a claim for $100,000 but this was later dropped.

Since that date the claim has been amended to $525,000.

Port Waratah Coal Services claims that Rising Tide’s action prevented the loading of 165,155 tonnes of coal, equivalent to two full coal ships, which according to PWCS is a “lost opportunity to load coal that can never be mitigated”.

While SLAPP suits are a nefarious assault on a functioning democracy, the misuse of victim’s compensation claims is stricter and totally distorts the meaning of victimhood. The real victims in this case are communities in the Hunter affected by respiratory disease and threats to local industries, communities in the Torres Strait, Bangladesh, the Pacific Islands, Nepal and North Africa who are already today feeling the effects of global warming caused by coal giants like PWCS, which is made up of Rio Tinto and Xstrata.

We hope that, regardless of the outcome of this case, the law is made clearer so that this is never able to happen again.


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