Timber and Other Industries Seek "Root and Branch" Removal of Secondary Boycott Exemptions

Friday 4 April 2014 @ 12.16 p.m. | Legal Research | Trade & Commerce

Recently, we posted that the Federal Government has released the final Terms of Reference and announced the members of the Review Panel for what the Minister for Small Business described as the Federal Government's "root and branch review" of Competition Policy and Law in Australia. It is now being reported that one reform that is being strongly argued for by rural and regionally based coalition and some labor members of parliament, as well as, various retail and industry groups is the amendment or removal of competition laws that exempt environmentally based campaigns from the secondary boycott provisions of the current competition laws.

Current Competition Laws Current Provisions

Currently the key provisions preventing boycotts are:

  • section 45D of the Competition and Consumer Act 2010 (Cth) (the CCA) which prevents secondary boycotts for the purpose of causing substantial loss or damage;
  • section 45DA of the CCA targets secondary boycotts for the purpose of causing substantial lessening of competition;
  • section 45DB outlaws boycotts affecting trade or commerce;
  • section 45DC deals with the consequences of contravention of the boycott provisions; and
  • section 45DD, which is the provision which it is being suggested should be reformed, particularly subparagraph 45DD(3)(a) of that section which provides that:

(3)  A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1)
by engaging in conduct if:

(a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and

(b)  . . .

The words "dominant purpose" relating to the conduct and "environmental protection" used in Section 45DD(3)(a) are not the subject of specific definition in section 4 of the CCA as was pointed out in Rural Exports & Trading (WA) Pty Ltd v Hanheuser [2008] FCAFC 156; 169 FCR 583; 249 ALR 445 (22 August 2008) where it was held that protection of sheep from harm during voyage from Australia to an overseas destination was not  capable of being "environmental protection" or "substantially related to environmental protection" under the CCA, although campaigns against companies by environmental groups on the grounds that they are selling products that damage the environment by being products that, for example, use old growth timber or use fish which it is claimed to be over fished are within the provision.

Reasons Proposed for the Removal of the Secondary Boycott Exemption

The Guardian and other media sources are reporting the comments of the Tasmanian Liberal Senator and Parliamentary Secretary for Agriculture, Richard Colbeck, among others, that "the backbench rural committee and 'quite a number in the ministry' want to use the governments [competition] review to remove the exemption for environmental groups from the [current] consumer laws". Mr Collbeck is further quoted as saying: “I do think there is an appetite in the government for changing these laws . . .” Mr Collbeck also pointed out that while the current exemption provision also applies to campaigns relating to “consumer protection” there was no move to change that part of the provision.

The Guardian also reports that the Australian Forest Products Association (the AFPA) and segments of the seafood industry are also preparing submissions to the competition law review arguing that environmental campaigns against companies selling products made from native timbers or “unsustainable” fishing are in fact a “secondary boycott” that should be unlawful under competition laws. Other campaigns cited as examples which might constitute "secondary boycotts" are the “No Harvey No” campaign organised by GetUp! and Markets for Change, aimed at furniture retailer Harvey Norman.

The chairman of the National Seafood Industry Alliance (the NSIA), Mr Grahame Turk, is reported as saying that his industry would be making a submission to the government's competition policy review arguing that market based environmental campaigns should be considered "secondary boycotts" and that further the ACCC should investigate the:

". . . veracity of what green groups say about particular industries . . . We need a level playing field to stop these environmental groups promulgating misinformation about seafood industry. The truth is most of the Australian seafood industry is highly sustainable . . . but they are still able to make these claims without any recourse . . ."

The Minister for Small Business is reported as saying that:

“The government is aware of the view in Tasmania that the secondary boycott provisions, and some other provisions of the competition law relating to false and misleading representations, should more readily accommodate campaigns involving non-government organisations . . . The ‘root and branch’ review of competition represents an opportunity for those views to be put forward and considered in an objective way, mindful that there are differing legal opinions about the reach of the current provisions."

Reaction from Environmental Groups and Others

Sam McLean the national director of GetUp speaking on the ABC radio's The World Today points out that:

"What this [the proposed changes to the CCA] would mean is that groups like World Wide Fund for Nature (WWF) or Choice, [or] GetUp, might not be able to highlight the damaging environmental practices of big business. It would take away a key protection for freedom of speech in the public interest".

Further, when questioned as to whether the views of Mr Collbeck, the Government, or the AFPA which "say it's not about suppressing free speech, it's just about protection against things that aren't true"  Mr Mclean's response is to point out that the issue with respect to the changes proposed to the CCA is not about the accuracy of of claims but about removing the exemption which allows environmental groups to protest against businesses damaging the environment.

Institute of Public Affairs (the IPA) research fellow Chris Berg also interviewed made the point:

"If you dislike what a company or organisation is doing, you should be able to advocate and debate in the marketplace of ideas that you and your fellow sympathisers should stop spending their money in a way that supports the company. I think that's completely legitimate form of political expression."

It does seem odd that, a government whose chief law officer, the Attorney- General, only in the last week or so, felt the need to get up in Parliament and restate the right of all to speak freely, even to the point of  bigotry, in the same gasp of free speech, contemplates the removal of a provision that allows citizens and their organisation to speak freely and to take on businesses or industries when they  behave badly without fear of legal reprisal.

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