Trade and Transport Bulletin - Live sheep trade and 'environmental protection'

The live sheep trade to the Middle East has for many years attracted the attention of animal liberationists seeking to ban the trade on animal welfare grounds. A recent decision in the Federal Court of Australia has found that one such person had acted in breach of the provisions of the Trade Practices Act 1974 (Act) and had engaged in conduct substantially hindering a third party from engaging in trade or commerce. It overturned a previous finding that justified the behaviour on the basis that it was 'substantially related' to 'environmental protection'.

Background facts

Ralph Hahnheuser and others entered a paddock of a sheep feed lot in Portland, Victoria on the night of 18 November 2003.  They placed a mixture of ham and water into two feed troughs from which about 1,700 sheep fed.  The sheep were being held for live export to the Middle East.  Mr Hahnheuser the following day released a video of the contamination and explained that the contamination was designed to prevent the sheep meeting Halal requirements. 

Statutory framework

Section 45 DB of the Act provides:

• A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.
• A person is taken to engage in conduct for a purpose mentioned in subsection 1 if the person engages in the conduct for purposes that include that purpose.

Section 45 DD then provides:

A person does not contravene, and is not involved in a contravention of … 45 DB (1) by engaging in conduct if:

(a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection …

Judgment at first instance

Justice Gray in the Federal Court in Melbourne found that the activity of Mr Hahnheuser was for a dominant purpose 'substantially related' to environmental protection and that this provided a defence to the allegation that he had engaged in conduct in contravention of section 42 DB of the Act. 

The appeal

The Federal Court appeal proceeded on two issues:

1. Whether the primary Judge was correct in holding that protection of sheep from suffering which Mr Hahnheuser perceived they would undergo if they were shipped to the Middle East, was within the meaning of 'environmental protection' as used in section 45 DD(3)a of the Act.
2. Whether the primary Judge was correct in holding that the onus of proving or negating that the dominant purpose for which Mr Hahnheuser had engaged in the conduct complained of was substantially related to environmental protection has been discharged and by whom was the onus borne.

In a joint judgment Justice French, Rares and Besanko (handed down on 22 August 2008) noted the argument put on behalf of Mr Hahnheuser was that sheep were part of the environment, they needed protection from the cruelty and suffering of being transported by ship, and protection of sheep from such treatment was environmental protection. 

The Court observed that:

'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 …. 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 or that environment being that location, thing or habitat which may include, or consist only of, that individual instance or aggregation.' 

It was noted that Mr Hahnheuser's actions did not have the dominant purpose of protecting the sheep from the paddock environment but rather he was seeking to protect them from the conditions experienced on board a ship. 

In other words, Mr Hahnheuser was not seeking the protection of any environment and particularly not that of the ship. Instead it related to the conditions which he believed the sheep would be exposed to when they left the paddock and were placed on board the vessel. Accordingly, it was found his activity did not relate to environmental protection.

In relation to the onus of proof, the Court found that the person seeking to rely upon the defence bore the onus of proving that his action had the dominant purpose that would extricate him from liability.  The Court did however recognise that a decision on the onus of proof was not necessary in view of the decision in relation to the dominant purpose of Mr Hahnheuser's activity.

The matter has been remitted to the primary judge for determination of the question of damages.

Conclusion

The Federal Court decision has restored the strength of the Act in preventing boycotts affecting trade or commerce.  The application of a more confined scope to the 'environmental protection' defence makes good sense. 

While no doubt animal liberationists will continue their activities in this area, they now do so at the risk of attracting an award of damages. 

For more information, please contact:

Andrew Tulloch, Partner
Tel +61 3 9274 5825
andrew.tulloch@dlaphillipsfox.com