SMH: Free speech? Not while we're on sheep's back
No price is too high to pay to protect the Aussie woolgrower. With marked contempt for the effect it would have on freewheeling public debate, Peter Costello has introduced a little bill to clobber campaigners against the bloody business of mulesing sheep. But not only them: his strategy will snare anyone calling for customer boycotts.
So if you're asking Australians not to buy lipstick tested on caged rabbits, rugs woven by Pakistani slaves or suits made with mulesed wool, then pray your boycott calls don't succeed, for the Australian Competition and Consumer Commission is about to be given the power to sue you out of the water if they do.
Gagging public debate with such threats has been an old ambition of the Howard Government.
Not that Canberra talks in such terms. Introducing the Trade Practices Amendment (Small Business Protection) Bill 2007 last week, Costello reaffirmed his Government's "commitment to stand up for small business against thuggery and intimidation. It is vital, both for our economy and our way of life."
But Costello's bill is designed to protect businesses of any size - all the way up to BHP Billiton - not by outlawing intimidation, but by punishing persuasion.
Hurt a business simply by arguing that it's ethically repugnant to buy its products and the commission will be able to step in and sue to recover the company's lost profits. It's quite a service.
There is a world of difference between physically blockading access to a construction site and advocating that members of the public should refrain from purchasing certain products. Yet, in a country without explicit guarantees of freedom of speech, a law intended to deal with the former can be, in the hands of a litigious organisation with deep pockets, adapted to suppress the latter.
This isn't the only time that the TPA has been used in an attempt to silence criticism. In 2006, the Australia Institute (a self-described think tank) published a discussion paper and media release [from archive.org] entitled "Corporate Paedophilia", on the alleged sexualisation of children which is promoted by corporate advertising. The media release said that "[c]hildren are being eroticised in the interest of the corporate bottom line" and that "[m]ajor retail chains such as David Jones and Myer have jumped on the bandwagon. When family department stores show no conscience on these issues, or are inured to the effects of their behaviour, the situation is very unhealthy."
David Jones denied the allegations and described them as defamatory. Unfortunately for David Jones, the introduction of national uniform defamation laws in January 2006 meant they could no longer sue the Australia Institute for defamation.
So, they did the next best thing; they sued them (and their director) for engaging in misleading or deceptive conduct in trade or commerce, under s 52 of the TPA. [Read the statement of claim here and the Australia Institute's defence here] This drew immediate comparisons to the McLibel saga in the UK. I would dub the David Jones action "McFiftyTwo", if not for a certain corporate clown who's very protective of those two letters of the alphabet, when used together.
But I digress. The David Jones matter has not yet been listed for trial, and pre-trial directions are not expected until December 2007. It will probably be the middle of 2008, at least, before we know the outcome. It's a long time for non-profit advocacy organisations such as the Australia Institute, EFA, and even myself, to be wondering whether we are in "trade or commerce", and whether any public statement that a wealthy corporation disagrees with will bring a lawsuit in reply.
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