Sheep Sabotage and the TPA, redux

In October last year I blogged about a funny case, involving an environmental activist who had contaminated (with ham) the feed for a group of sheep due to be shipped to the middle east for halal slaughter.  The companies involved in the exporting sued under s 45DB of the TPA - which deals with boycotts affecting international exports.  At first instance it was held that the environmental activist came within an exception to the boycott provisions, because the dominant purpose for his conduct was 'substantially related to environmental protection.'  At the time, this decision was criticised by the livestock industry as likely to bring about the apocalypse and 'open[ing] the gate for Agricultural Terrorism.'

It's perhaps not surprising then that they appealed.  What is somewhat more surprising is that the Full Federal Court (French, Rares & Besanko JJ) unanimously allowed the appeal - Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2008] FCFCA 156.  At [24] they say:

The expression "environmental protection" in its ordinary and natural meaning does not refer simply to the protection of the natural environment. It also can refer to the built environment, such as a heritage building, streetscape or, perhaps, a particular instance of town planning. Thus, the protection of some artificial aspects of the environment can be within the scope of "environmental protection" in s 45DD(3). But the "environment" referred to in the expression ordinarily will be a particular location, thing or habitat in which a particular individual instance or aggregation of flora or fauna or artifice exists. And the "protection" is to preserve the existence and or characteristics of that environment being that location, thing or habitat which may include, or consist only of, that individual instance or aggregation. For present purposes, it is not necessary to essay an exhaustive definition. It is sufficient to say that the concept does not extend as far as his Honour found, nor as far as the respondent proposed.

In short, the Court held that Hahnheuser wasn't trying to protect the environment of the paddock which the sheep were in, nor the environment of the ship (which Hahnheuser believed was inhumane), he was trying to prevent the sheep being moved from the former environment to the latter, to prevent their exposure to the latter environment.  This, says the Court, doesn't fall within 'environmental protection'.

This also seems to leave the activities of groups such as PETA - who have called a boycott against Australian wool over the practice of 'mulesing' - under something of a cloud.

Given that this will probably be one of Justice French's last decisions before he is sworn in as Chief Justice of the High Court in five days time, the chances of Hahnheuser getting special leave to appeal appear somewhat remote.