Shouts from the desert

A lot of mainstream press today is claiming that the Treasurer's proposed legislation will make organised boycotts of products by pressure groups illegal. Based on what has been revealed so far this is not true for two reasons &emdash; firstly, Costello's plan is not to change the substantive rules in place, but to allow for the ACCC to enforce the rules. The victims of this kind of conduct can already enforce the rules if they want to go to court. It is unlikely that the ACCC would attempt to enforce the rules in the case of a consumer boycott.

Secondly, the rules do not apply to an ordinary consumer boycott &emdash; they apply to what is known as a secondary boycott. The proposal is to allow the ACCC to take action to enforce two specific provisions: sections 45D and 45E of the Trade Practices Act 1974 (Cth). Section 45E only applies to the conduct of unions, so we can ignore that for now. Section 45D is the basic secondary boycott provision and can apply to the conduct of pressure groups.

In simple terms, a secondary boycott under section 45D occurs when two or more people act to prevent or hinder two businesses from engaging in a supply transaction. In the case of the fur industry, this might apply if the activists were to take action to prevent a retailer from being able to buy fur even though the retailer wanted to do that &emdash; it does not prevent you from boycotting the retailer so as to affect their decision to purchase and sell fur. On top of this, the conduct has to have the purpose of causing substantial loss or damage to one of the businesses &emdash; the purpose of the action needs to be directed at harming the business rather than preventing the impugned conduct of the business. These may seem subtle distinctions, but they are ones the Courts are well able to deal with.

Boycotts in which consumers refuse to buy from the retailer are not covered &emdash; but if you stand in front of the trucks of the company that delivers the fur, you are engaging in secondary boycott activity.

On top of this, under section 51(2A) consumer boycotts are specifically exempted from section section 45D, and under section 45DD actions (other than industrial actions) taken for environmental or consumer protection are exempted from section 45D.

Even without all of these protections, Courts will read these sections as narrowly as the language permits because they have the potential to interfere with freedom to contract.

These provisions were originally directed at unions. If a car manufacturer was in a dispute with the union representing its employees over pay conditions and brought in non-union labour, traditionally the union employees at some of its suppliers would then refuse to provide parts to the car manufacturer so they could not continue to make cars with their "scab" labour. While it is possible for non-union organisations to breach section 45D, it takes some unusual circumstances that involve interfering either unethically or unlawfully with the lawful conduct of others to do so.

So continue to organise boycotts of fur suppliers all you like. Unless you are doing something else to try to force one business not to supply goods or services to another, you are well within the safety zone and there are additional protections in the law to prevent this from being applied to ordinary boycotts of suppliers of these products.