Case: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290
Outcome: cited
The only other relevant authority appears to be Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. That case involved an attempt to strike out a statement of claim in which reliance was placed on s 45DB(1) of the Trade Practices Act , among other causes of action. Hely J struck out those parts of the statement of claim based on s 45DB. The relevant passages in his Honour's judgment are found at [56]-[65] and cast light on the question of interpretation that arises in the present case. It is not clear from the reasons for judgment what trade or commerce the applicants in that case carried on. Reference to an earlier judgment in the same proceeding, Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [1] and [3], reveals those applicants to have been a corporation claiming to represent some 30,000 Australian woolgrowers, and persons or companies who were Australian woolgrowers represented by that corporation. In Australian Wool Innovation (No 2) at [57], Hely J pointed out that about 95 per cent of the annual production of Australian wool is exported to places outside Australia. The respondents in that case were alleged to be conducting a campaign against a practice known as mulesing, a practice involving the surgical removal of folds of skin in the breech of a ewe as a measure against flystrike. At [57], his Honour described this as a campaign that could be seen as conduct designed to hinder or prevent the export of Australian wool. His Honour said: On a broad reading of s 45DB , conduct which prevents an export sale of wool is at least arguably conduct which prevents the putative vendor from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia because, as a result of the frustration of the intended sale, there will be no movement of those goods overseas. 50 As his Honour pointed out at [59], the original form in which s 45DB(1) passed through the House of Representatives contained a prohibition on persons, acting in concert, from engaging in conduct where the purpose and effect or likely effect of the conduct was to prevent or substantially hinder a third person from engaging in trade or commerce between Australia and other countries, among the States and Territories or within a Territory. The final form of the provision resulted from an amendment sponsored jointly by the Government and the Australian Democrats, and moved in the Senate. The form of the amendment appears to have provoked some controversy, because a document recording arguments of the Government in favour of the amendment was incorporated into the parliamentary record (Australia, Senate, Debates , (1996) Vol S180, p 5606). That document contained the following passage, which Hely J quoted in Australian Wool Innovation (No 2) at [60]: Some concern has been expressed that the provision, as amended, still imposes a very broad prohibition on conduct that constitutes a primary or second boycott. The concern appears to be based on a view that the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" covers a very broad range of activities, because a great many manufacturing and distribution operations have some connection with the export of goods. The concern is ill-founded. The intention of this amendment is that the prohibition in section 45DB will not apply in respect of the production and distribution of goods within Australia. The boycott conduct that the section is designed to prohibit is conduct that has been undertaken for a particular purpose and which has, or is likely to have, a particular effect. The purpose and effect of the conduct must be to prevent or substantially hinder a third person from engaging in a particular type of trade or commerce. That is, trade or commerce involving the movement of goods between Australia and places outside Australia. In this context, the use of the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" does not mean merely that the trade or commerce affected includes the movement of goods into or out of Australia, or that the movement of goods into or out of Australia forms some part of, or is related to, the trade and commerce. Rather, it means that the trade or commerce that is affected must entail, or be rolled up with, the movement of goods between Australia and places outside Australia. 51 In addition, at [61], Hely J quoted from the speech of Senator Murray, a joint mover of the amendment motion, in the following terms: These amendments represent a signification modification of the original bill ... Instead of a general prohibition on primary boycotts affecting trade and commerce, the prohibition will extend only to trade and commerce involving the movement of goods between Australia and places outside it. This provision will pick up only the act of movement; it will not pick up any other aspect of trade and commerce. Some commentators have suggested that it will pick up any aspect of trade and commerce if some aspect of that trade and commerce were to involve the movement of goods. I wish to state categorically, as a joint mover of the motion, that this is clearly not the intention of that provision. This provision is targeted purely and solely at movement, at shipping, for example. The reason for that is that primary boycotts on the wharves affect many other people. The effect is not limited to the immediate parties involved. If the waterside workers refuse to load perishable goods, the supplying factory might be forced to suspend operations and stand down workers, resulting in innocent employers and employees being hurt. 52 At [62], Hely J expressed the view that it was clear that s 45DB(1) as enacted was intended to have a much narrower field of operation than the form originally proposed. At [63]-[64], his Honour rejected an argument that the provision was ambiguous and might, on one view, be broad enough to encompass the claim made. His Honour decided to resolve the question of construction then and there, rather than to leave it to the trial. He expressed the view that the words "involving the movement of goods" are "obviously words of limitation intended to narrow what would otherwise have been the scope of the s 45DB prohibition." It is noteworthy that his Honour appears to have regarded the issue as so clear as to warrant the striking out of the claim. 53 In the present case, counsel for the applicants objected to reliance being placed on the parliamentary materials on which Hely J relied. The objection was obviously untenable. Section 15AB of the Acts Interpretation Act 1901 (Cth) permits the use of material not forming part of an Act if that material is capable of assisting in the ascertainment of the meaning of a provision. Among the material specified in s 15AB(2) as materials that may be considered are: (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted; ... (h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament. 54 In a case such as the present, the history of a provision can be of great importance in construing its meaning. It is possible to see, as Hely J did, that the operation of the provision has been narrowed substantially when compared with the form in which it was first passed by the House of Representatives and transmitted to the Senate. It is significant that the amendment proposed was supported by the Government. The document incorporated into Hansard, on which Hely J relied, falls squarely within s 15AB(2)(e) and the remarks of Senator Murray, a joint mover of the amendment, fall within s 15AB(2)(h). 55 I respectfully adopt Hely J's reasoning in relation to s 45DB(1). His Honour's judgment was a considered one. To the extent to which Hely J's view is inconsistent with the views of Drummond J in F H Transport and Sackville J in Farah , Hely J's view is to be preferred. There is nothing in the reasons of Drummond J and Sackville J in those two cases to show that their Honours even considered the possibility that the words "involving the movement of goods" should be regarded as narrowing the operation of s 45DB(1), or that either of them considered the parliamentary materials.