Involving the movement of goods between Australia and places outside Australia
46 It is not any trade or commerce that is protected by s 45DB(1) of the Trade Practices Act. The protection is afforded to trade or commerce "involving the movement of goods between Australia and places outside Australia." The term "goods" is defined to include animals. There were therefore goods to be moved between Australia and a place or places outside Australia, being a destination or destinations in the Middle East, in the present case. The real question is whether the trade or commerce of either applicant was trade or commerce "involving" that movement.
47 In this respect, there is some authority, which may shed light on the meaning of s 45DB(1). In F H Transport Pty Ltd v Transport Workers' Union of Australia (1997) 75 FCR 480, Drummond J considered whether to grant an interlocutory injunction to restrain industrial action interfering with the delivery of goods to, and the collecting of goods from, terminals operated by several transport companies. The interlocutory injunction was sought on a number of grounds, including alleged contravention of s 45DB(1) of the Trade Practices Act. At 490, his Honour suggested, in a single sentence, that the existence of evidence that part of one transport company's activities involve the movement of containers committed to international trade showed that there was a strong arguable case of infringement of s 45DB. His Honour did not discuss specifically whether the trade or commerce of a transport company, being the carriage of containers by road, was trade or commerce "involving" the movement of goods between Australia and a place outside Australia. He appears to have assumed that this was so. In Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR 41-583, Sackville J rejected a claim for an interlocutory injunction, which was based on s 45D(1) and s 45DB(1) of the Trade Practices Act. In that case, a picket line was preventing the delivery of goods to premises in Sydney, occupied by an importer and wholesale distributor of clothing products, some of which were manufactured in Fiji. At 44,066-44,067, his Honour expressed a tentative view that there was not a serious issue to be tried in relation to s 45DB(1), because there was little or nothing in the evidence suggesting that any of those involved in the picket had in mind the purpose of preventing or substantially hindering the Fijian supplier from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia. His Honour did express the view that the evidentiary position may change on a final hearing. It therefore appears that his Honour took the view that it was at least possible that the Fijian manufacturer and exporter to Australia was engaged in trade or commerce involving the movement of goods from a place outside Australia to Australia.
48 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.
49 Nevertheless, his Honour struck out the relevant paragraphs of the statement of claim in that case, on the basis that s 45DB "is directed at the act of movement of the goods, and not at acts anterior to the act of movement." See [58] and [64]. This conclusion was the result of his Honour's examination of the history of the passage of s 45DB through Parliament.
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.
56 The view expressed by Hely J, that s 45DB(1) does not apply to acts anterior to the movement of goods from Australia to a place outside Australia, is consistent with dictionary definitions of the word "involving" and authorities dealing with the use of that word in other statutory contexts. The Macquarie Dictionary (revised edition) defines "involve" relevantly as follows: "to include as a necessary circumstance, condition, or consequence; imply; entail" and "to include, contain or comprehend within itself or its scope." The Oxford English Dictionary (2nd edition) defines "involve" relevantly as: "to enfold, envelop, entangle, include"; "to include; to contain, imply"; and "to contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence; to imply, entail." In Rimanic v Business Licensing Authority [2001] VSC 400, Habersberger J had to consider whether a conviction for making a threat to kill was a conviction "of an offence involving violence", disqualifying a person from obtaining a licence as a motor car trader. At [19], his Honour referred to dictionary definitions. At [45]-[46], his Honour referred to Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, in which the question was whether certain statutory offences were offences "involving fraud or dishonesty". In Pollard, the argument that such an offence was limited to an offence "of" fraud or dishonesty was rejected, on the basis that the substitution of the word "of" for the word "involving" would fail to give the relevant provision its ordinary meaning. At [48], Habersberger J expressed the view that an offence involving violence is something less than an offence of violence, relying on Pollard. Relying on R v McCrossen [1991] Tas R 1, his Honour also expressed the view that an offence involving violence is also something less than an offence one of the essential ingredients of which is violence. As one of the relevant meanings of the word "involving" was "implying", and a threat to kill implied violence, a threat to kill was an offence involving violence.
57 The result of this examination of the authorities seems to me to be the conclusion that "trade or commerce involving the movement of goods between Australia and places outside Australia" in s 45DB(1) of the Trade Practices Act is not limited to trade or commerce being the movement of goods. That is to say, it is not limited to trade or commerce carried on by the actual shipper of the goods. In my view, it extends to include the trade or commerce of the person who engages the shipper to carry the goods. In this case, that person is the exporter, Samex. The trade or commerce of Samex is trade or commerce "involving" that movement of goods, because the movement is enfolded, enveloped, entangled, included or contained as a necessary element or circumstance of the trade or commerce. Thus, the use of the word "involving" gives rise to a broader meaning than simply trade or commerce being the movement of goods. On the other hand, trade or commerce involving acts anterior to the movement of goods is excluded. Again, this is the effect of the use of the word "involving". Such trade or commerce might be connected with the movement of goods to a place outside Australia, but that movement of goods is not contained within the trade or commerce. As a consequence, the trade or commerce of Rural Export, particularly that of supplying the feed while the sheep were in the feedlot, which ceased at the time when the sheep were loaded onto trucks for carriage to the wharf, was not protected by s 45DB(1).