Boycott reforms target environmentalists

Julian Brezniak and Lewis d'Avigdor

Chain Reaction #119, Nov 2013, www.foe.org.au/chain-reaction/editions/119

The Government is intending to review the legal protections currently offered to environmental groups who engage in secondary boycotts. The parliamentary secretary for agriculture Senator Richard Colbeck told The Australian that "one of the things I'd be looking at would be to bring a level playing field back so that environment groups are required to comply with the same requirements as business and industry."[1]

This policy has been in the pipeline for some time, since at least March 2013, as part of the Coalition's intended "root and branch" review of competition law in Australia, including the Competition and Consumer Act.[2]

This review has far reaching implications for both environmental activism and the functioning of political debate in Australia. The proposals are particularly important to Tasmania's forestry industry, which has been the subject of some significant secondary boycotts.

Usually a commercial boycott includes some sort of agreement to abstain from dealings with a business to achieve some end. There have been many famous boycotts[3], not least the 1987 and 1991 Rugby World Cup boycotts that blocked the Springboks from competition.

As it stands, the Competition and Consumer Act [4] does not prohibit these "primary boycotts" in most circumstances. Individuals are usually free to agree to not acquire products from companies that, for example, source products from environmentally harmful or morally dubious sources.

Only primary boycotts relating to a business that is engaging in international trade are banned – it is currently prohibited for individuals to collectively engage in boycotts that are aimed at disrupting Australian trade.[5]

However, the Competition and Consumer Act does prohibit "secondary boycotts". A secondary boycott occurs when two or more people act together to hinder or prevent a business from acquiring products from or selling products to another business. Secondary boycotts of this nature are not illegal if the ACCC gives an authorisation to conduct one.

Secondary boycotts (and primary boycotts affecting international trade) are lawful when the "dominant purpose" of the boycott is for environmental protection or for consumer protection. And it is this exception to the prohibition on secondary boycotts that is at the centre of the public debate about the coalition's "root and branch" review of Australia's competition laws.

These environmental and consumer protections were included in the Competition and Consumer Act in 1996 as a compromise for support for Howard's 1996 workplace legislation by Cheryl Kernot and the Democrats in the Senate.

It is not clear whether the Coalition will seek to remove only the protection for environmental and consumer activists conducting secondary boycotts. It is possible that the Coalition would also seek to prohibit primary boycotts – an unprecedented restriction.

The particularly concerning aspect of the Coalition's proposal is the chilling effect it may have on public debate. The Competition and Consumer Act extends liability for secondary boycotts to people who attempt, or attempt to induce others to engage in a secondary boycott, or for being indirectly "knowingly concerned" in a secondary boycott.

If the Coalition removes the protection for environmental or consumer activists, then it may be that even a tweet from an environmental activist, calling on others to not buy a company's finished products because they contain inputs sourced from (to use one example) Gunns, would be vulnerable.

This prohibition is made broader still because the tweet in question need not actually have a adverse economic impact on the business targeted by the boycott – it need only have the "purpose" of causing "substantial loss or damage" to the target of the boycott.

Yet what about factual representations? The proposed changes have the potential to go beyond targeting misrepresentations. Even truthful statements made by activists that have the purpose of inducing others to change their purchasing habits may be vulnerable if the Coalition's proposals are advanced.

Eric Hutchinson, incoming Liberal Member for the Tasmanian seat of Lyons said recently on ABC's Tasmanian Statewide Morning with Leon Compton that, "It's not about a reduction in free speech, it's about being accountable for the consequences for making misrepresentations."[6]

When questioned about the alleged misrepresentations made by activist groups about the environment, Hutchinson pointed to the change in terminology used in relation to Tasmania's protected forests: from "old growth" to "native forest" and then to "high conservation value forest". It is not clear whether GetUp! or the other environmental activist groups are responsible for these changes in terminology, much less whether such terms could be considered as false representations.

The Coalition's proposed changes to the Competition and Consumer Act threaten to foreclose public discussion about the effects of business on the environment – and they come just as the closure of a major source of environmental information – the Climate Commission – has been announced.

Yet the political impetus which has framed these policy murmurings can be found in Tasmania. The past actions of secondary boycotts relating to Gunns and Ta Ann combined with the swing against Labor in Tasmania may have emboldened the Coalition to attack environmental groups. If they are successful in pursuing this policy under the banner of competition policy reform, it will have the effect of silencing debate and prohibiting coordinated actions.

It is odd for a party that champions free markets to turn to regulation to preserve vested interests, when consumers have failed to back those interests. One certainly hopes that the Institute for Public Affairs will continue to campaign against this policy, as Chris Berg did on September 24.[7]

References:

[1] www.theaustralian.com.au/national-affairs/companies-to-get-protection-fr...

[2] www.liberal.org.au/building-strong-prosperous-tasmania

[3] http://listverse.com/2011/09/03/10-famous-boycotts/

[4] www.comlaw.gov.au/Details/C2013C00004

[5] www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s45db.html

[6] http://blogs.abc.net.au/tasmania/2013/09/mornings-on-demand-monday-23920...

[7] www.abc.net.au/news/2013-09-24/berg-freedom-of-speech-means-freedom-to-b...

Julian Brezniak is a law and economics graduate who has worked in the competition law group of a large law firm. He is an alumnus of the UNSW Law Journal general editorial board. Lewis d'Avigdor is law graduate working at a Sydney commercial firm. He is a former editor of social justice law journal Dissent.

Reprinted from New Matilda, 25 September 2013,

https://newmatilda.com//2013/09/25/boycott-reforms-target-environmentalists