Dissenting Report by The Australian Greens
The Australian Greens do not
support this Bill. We oppose the secondary boycott provisions in the Trade
Practices Act and as such cannot support the creation of new means for
persons to access redress for breaches of those provisions.
We understand that the proposed
amendments do not amend the cause of action under sections 45D and 45E of the Trade
Practices Act but rather facilitate the ACCC taking action on behalf of
affected persons for injury caused by a breach of those provisions. In general,
we support representative actions, however, we do not believe it is the proper
role of the ACCC to take action of the nature facilitated by the proposed
amendments.
The Trade
Practices Act and the ACCC are primarily concerned with consumer protection
and competition law. The secondary boycott provisions in the Act are an anomaly
and are primarily aimed at the activities of trade unions and their members. We
agree with the ACTU when they say that:
the
appropriate regulatory regime for trade union activity is the workplace
relations regime, not the competition laws. The
Australian Industrial Relations
Commission (AIRC) is the appropriate specialist regulator. Importantly its
approach to industrial disputation has traditionally involved resolution of the
underlying dispute whilst preserving the ongoing relationship between
industrial parties.[1]
We also note the comments of the
AMWU that that the International Labor Organisation has found the secondary
boycott provisions inconsistent with Australia’s obligations in relation to
freedom of association. The AMWU also notes that the Senate has on numerous
occasions in the past refused to pass Bills that have sought to enable the ACCC
to pursue representative actions for contravention of section 45D and 45E.[2]
We do not believe it is the
proper or appropriate role of the ACCC to be able to bring representative
action for breaches of the section 45D or 45E.
It is even more worrying for the
Greens that the Treasurer advocates for these amendments citing the activities
of animal welfare activists. The explicitly stated intention on the part of the
Treasurer that these provisions should be used against citizen activists
protesting what they believe to be unethical or immoral practices is of great
concern.
We note the numerous submissions
received by the Committee from activists worried about the effect of this Bill
on their legitimate rights of protest. We have a great deal of sympathy for
their views.
In his submission, Associate
Professor Frank Zumbo highlights another concerning aspect to this Bill. Professor
Zumbo submits that the ACCC rarely undertakes representative action given they
are very expensive and cumbersome to run and “because they involve the use of
public money to fund what is essentially private litigation on behalf of
private individuals or entities.”[3]
In his view the ACCC would be even more unlikely to take on representative
actions for breaches of section 45D or 45E. Given it is unlikely these
amendments will be utilised by the ACCC, their main objective seems to be
intimidating citizen activists into not protesting or organising campaigns
which may affect a business.
It is this aspect of the Bill the
Greens find particularly objectionable. Business interests must be able to
exist in a robust democracy. Citizens exercising their rights of freedom of
speech and freedom of association should not be able to be pursued by the
Government on behalf of business.
We note the comments of Animal
Liberation ACT:
There is no public good being
furthered by this legislation. It is the job of the ACCC to ensure that the
market is not corrupted by unscrupulous business practices. In doing that the
whole community benefits, we enjoy a fair market place where all have the potential
to benefit based on the merit of what they have to offer, a worthy use of
public money for a public good. It is not the job of the ACCC to stymie public
debate with the threat of a law suit.....One ought to be able to take a stand on
any particular issue without fear that public money will be used to silence
them. ...If anyone acts tortiously towards anther we have a legal system and a
range of remedies that individual can use if they believe they have been
wronged. This is appropriate and reasonable; using public monies to trample the
rights of sections of the community is not.[4]
The Government argues the Bill is
to benefit small business, however, it is important to recognise that the
proposed amendments in the Bill in no way limit the application of the
provisions to small business, however defined. Again we believe this failure
for the Bill to reflect the Government’s rhetoric indicates its primary purpose
is intimidation of citizens wishing to exercise their democratic rights. It is
extraordinary to even consider the possibility of the ACCC taking legal action
on behalf of multi-million dollar businesses against citizens protesting on
moral grounds, yet that is what this Bill contemplates.
We support, in general, the
protection of small businesses from anti-competitive behaviour. However, the
secondary boycott provisions do not relate in our view to anti-competitive
behaviour but rather are an infringement on the democratic rights of citizens
to freedom of speech and freedom of association.
We note the suggestion to
restrict the proposed amendments to small business. We do not support that
approach given our position on section 45D and 45E expressed above. We also
note the suggestions for an amendment to the secondary boycott provisions,
specifically section 45DD, to provide for a clear broader exemption for public
interest campaigning.[5]
While such an amendment would improve on the current situation it does not
address our primary concern with the secondary boycott provisions and the
Australian Greens will be opposing the Bill in its current form.
Senator Rachel Siewert
Australian Greens
Senator for Western Australia
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