Prime Minister Scott Morrison wants to increase protection for the mining industry from protesters. His concern is that 'environmental groups are targeting businesses and firms who provide goods or services to firms they don't like, especially the resources sector'. He says that 'when Australian corporations deny services to other Australian companies under pressure from these activist groups, [bad things happen]'.
The PM is talking about environmentalists who lobby businesses, like banks, to influence them not to deal with other businesses who do bad things to the planet, like Adani. He says this behaviour amounts to a secondary boycott. A secondary boycott happens where people get together to hinder or prevent one business from buying or selling stuff to another business. The latter business is the true target of their action. Some secondary boycotts are prohibited under the Competition and Consumer Act. Those prohibitions don't apply to boycotts for the purpose of environmental protection.
The behaviour the PM is talking about isn't a secondary boycott; not in the legal sense at least. The reason is that the environmentalists aren't 'hindering or preventing' the banks' work. Lobbying and influencing is not hindering or preventing.
The Harper Review of the CCA in 2015 recognised this. Despite receiving 17 submissions on the topic of secondary boycotts for the purpose of environmental or consumer protection, it saw no compelling evidence of any actual secondary boycott activity falling within the environmental protection exception. It also recognised that public advocacy campaigns are not secondary boycotts.
Senator Matt Canavan has been in the press talking about small businesses on the receiving end of environmental action. He gave one example of a farmer who allowed Santos to drill wells on his property. Apparently activists intimidated the farmer and his family, padlocking their gates, welding them shut, damaging their driveway. The example is misguided; criminal offences like trespass, vandalism, damage to property, would already apply to that behaviour. More amusingly, Canavan himself has previously called for a consumer boycott of Westpac because it refused to lend money to Adani.
What the PM is talking about is far more subtle and insidious. To target activists in the way he implies would require more than repeal of the existing CCA protection of secondary boycotts for environmental purposes. The PM wants new laws which limit communications about important political issues like the environment. He would limit our ability to legitimately debate, probe, lobby, persuade, influence and try to change businesses' minds about who they do and don't want to deal with.
That's not very 'free market' of him. Fortunately, it's probably not very Constitutional of him either. Any law of this nature would risk being struck down by the courts as constitutionally invalid. A freedom of political communication is implied in our Constitution. It means that the government can't enact laws which unreasonably constrain that freedom.
Any law limiting environmentalists' ability to lobby would
obviously burden political communication. Whether it serves a
legitimate purpose and is appropriately adapted to that purpose,
really depends on the detail of the law. The PM says that the law
is necessary to protect our economy. He calls the activism
'economic sabotage'. This proposition seems to
assume that environmental preservation and economic stability are
mutually exclusive. Mind you, it'd be hard for businesses to
keep making profits without a functioning planet.
On the whole, it looks like the government's made a promise on which it is unlikely to deliver.
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