The federal government has indicated that it is considering repealing an exemption in the Competition and Consumer Act that provides for boycotts of companies on environmental grounds. The government is concerned at preventing boycotts such as GetUp’s 2011 campaign
against Harvey Norman. Customers were urged to boycott the store to
encourage it to stop stocking furniture made from Australian native
There are valid reasons to protect even inaccurate speech in order to
safeguard the principle of freedom of expression. But the issue here is
that the government is seeking to do so in an inconsistent manner.
The government is also seeking to amend the Racial Discrimination Act in order to protect the “right to be a bigot”
– in attorney-general George Brandis' words – and thus to make
inaccurate and harmful claims about people on the basis of their race in
the name of free speech. Simultaneously, however, the government may
amend the Competition and Consumer Act to remove such a right in
relation to corporations.
In doing so, the government is exposing its own hierarchy of values in which freedom of expression is not actually paramount.
The Competition and Consumer Act
The parliamentary secretary for agriculture, Richard Colbeck, argued that the proposed amendments to the Competition and Consumer Act are consistent with the government’s apparent commitment to freedom of speech.
He says that campaigners can “say what they like”, but that businesses
need to have access to “some recourse to enforce accuracy”.
As it stands, Section 45D
of the act prohibits people from conducting a boycott that would cause
loss or damage to the business of another person. The purpose of the
section is to promote competition in the market and to protect the
freedom to conduct business within this market.
In drafting the act, the government recognised that this value of
market freedom had to be balanced against the value of freedom of
expression. As a result, Section 45DD
contains several exemptions to Section 45D, which protect certain kinds
of industrial action and consumer boycotts conducted for reasons:
…substantially related to environmental protection or consumer protection.
The operation of these two sections is a classic example of the fact
that Australian law often seeks to promote a whole variety of policy
objectives, and these objectives or values are not always consistent
with each other. One of the complications of drafting good law is
finding an appropriate balance between competing values. Often this
requires determining which value is most important.
In the case of Section 45D, it was decided that freedom of expression
would be given priority and allowed to “trump” the rights of businesses
The 18C debate
But if we examine Colbeck’s argument in relation to the government’s commitment to repealing Section 18C of the Racial Discrimination Act, it becomes clear that this claim of consistency is unsustainable, unless Colbeck believes that bigotry is, in fact, accurate.
Brandis has previously indicated that the decision to repeal Section 18C was motivated by the 2011 case against News Corp columnist Andrew Bolt. Brandis argued last September that Bolt:
…was successfully prosecuted merely because he expressed a controversial opinion.
As the law stands, Section 18D provides a broad exemption to Section 18C for, among other things:
…anything said or done reasonably and in good faith … in
making or publishing … a fair comment on any … matter of public interest
if the comment is an expression of a genuine belief held by the person
making the comment.
In his judgment
against Bolt, Justice Bromberg emphasised that although the phrase
“offend, insult, humiliate or intimidate” in Section 18C seems to be
very broad, it does not extend to personal hurt feelings, but rather to
conduct that has profound and serious effects.
The reason that Bolt was found to have breached Section 18C was
because his articles were found to have both profound and serious
effects, and to contain multiple errors of material fact, distortions of
the truth and inflammatory and provocative language.
In other words, the group of fair-skinned Indigenous Australians did
not use Section 18C to sue Bolt for “hurt feelings” (as so many have claimed), but rather as a means of preventing serious harm to themselves and their community, and as “recourse to enforce accuracy”.
The wider freedom agenda
When taken together, it is clear from the government’s actions that
the value it holds to be paramount is the freedom of the market – or,
more accurately, the freedom to profit.
While the government is keen to promote an unfettered right to speech
when it comes into conflict with the right to equality for marginalised
groups, it is quite prepared to trample over this same right to speech
when it conflicts with corporate profits.
So, the next time Brandis highlights this government’s commitment to
freedom, it’s worth being clear about whose freedom he is referring to.
He has previously written that:
…rights are moral claims inhering in individual men and women (and, in certain circumstances, in corporations as well).
In light of possible changes to the Competition and Consumer Act,
perhaps Brandis should have considered reversing this order of mention.