In the first case to test the exemption from boycotts laws for actions aimed at environmental protection, the Federal Court has found an animal rights activist didn't breach the Trade Practices Act when he deliberately sabotaged an export shipment of live sheep.
The ruling is a blow to farming groups, which used their multi-million dollar fighting fund to support the litigation.
The judgment establishes that defendants seeking to use the s45DD(3) environmental protection defence don't need to provide evidence objectively linking their actions with environmental protection.
Rather, it is sufficient that a person “has a subjective dominant purpose substantially related to environmental protection,” Justice Peter Gray found.
To prevent the live export of sheep, animal liberationist Ralph Hahnheuser arranged for video footage to be taken allegedly showing him contaminating the feed of sheep being readied for live export to the Middle East.
The footage claimed to show Hahnheuser mixing shredded ham into a feeding trough. He released the footage the next day with a release saying this “rendered them unsuitable for export to Muslim countries”.
That led Rural Export & Trading (WA) Pty Ltd and Samex Australian Meat Co Pty Ltd to launch proceedings against Hahnheuser alleging a breach of s45DB(1) of the Trade Practices Act. This ‘secondary boycott’ provision prevents a person from preventing or substantially hindering a third person, who is not their employer, from engaging in trade or commerce.
But s45DB(3) holds there is no breach if “the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection” and the conduct is not industrial action. Gray accepted this defence applied to Hahnheuser’s actions.
The judge rejected a claim made on behalf of the companies that it was necessary to provide evidence that the sheep would actually suffer cruelty if shipped live, ruling there was no need for an “objective demonstration” that they would suffer harm.
Nor did it matter that Hahnheuser did not appear in court during the trial to prove his purpose, Gray said.
“Rather, it falls on the applicants to establish on the balance of probabilities that Mr Hahnheuser did not have a dominant purpose substantially related to environmental protection when he engaged in the conduct complained of,” Gray held.
The judge also said the term ‘environmental protection’ in the Act should be understood by its ordinary meaning, not in a narrow way that would exclude farm animals.
“It is clear that the environment comprehends living things, including animals, and the conditions under which they live,” he said. “No reason appears for drawing any distinction between animals that are bred to be farming stock, to be slaughtered for the production of food for humans, and other animals.”
"Important finding"
Animals Australia Legal Counsel Dr Malcolm Caulfield said the decision was an “ important finding”.
The ruling means “protests about cruelty to farm animals, such as keeping pigs in sow stalls or keeping chickens in battery cages, can not be attacked using the ‘secondary boycott’ provisions”, he said.
Tabitha Lovett, manager of the Public Interest Law Clearing House (PILCH), which arranged pro bono representation for Hahnheuser, said PILCH was “very pleased” with the decision. “There was a strong suspicion that the proceedings were designed not to recover damages but to deter protest against the live export trade, akin to a SLAPP Writ (Strategic Litigation against Public Participation),” she said.
Victorian Farmers Federation President Simon Ramsay said the ruling “sent a dangerous message to other environmental groups wishing to make their points through further acts of agricultural terrorism”.
"After three years and a significant financial commitment to this case through the Australian Farmers Fighting Fund farmers are disappointed with today's outcome," he said.
"From the start, this case was a test of the Act and today's ruling has outlined serious deficiencies,” he said. “The VFF will pursue discussions with Government to explore amendments to the Act that will ensure that these loopholes are closed."
Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535 (4 October 2007)
