The criminal charge of "intimidation"
has been on the statute books for almost 100 years and carries with
it the possibility of jail sentences. It was only recently discovered
by local police who say they will use it more often in future. In 1993
the protesters were found guilty and fined $4000 in the first conviction
of this kind. The Australian Council of Civil Liberties backed an appeal
against the convictions saying that they were an "outrageous" interference
with the "basic right to protest".
Trade Practices Act
The Trade Practices Act has been used
against environmental activists. The Act contains provisions, "secondary
boycott provisions", that were originally introduced to stop trade union
actions, including strikes. It made it illegal for a group of people
to interfere with the provision of services or products that one party
has contracted to provide to another party. This act was used against
Greenpeace Australia in March 1991.
The ship Western Odyssey was undertaking
seismic testing in Victorian waters for BHP Petroleum to investigate
the feasibility of drilling for oil. Greenpeace was concerned about
the impact that the sonic booms would have on the Southern Right Whale,
because the area was a breeding and calving ground for the whales. (The
area is now a whale sanctuary.) It was also concerned about the environmental
impact of offshore drilling. BHP had said that it wouldn't drill whilst
the whales were calving but Greenpeace campaigners felt they couldn't
trust BHP to stop a multi-million dollar operation for six months of
Greenpeace Australia, using the Rainbow
Warrior, interfered with the seismic testing by continually moving a
buoy that the testing boat was dragging behind it to receive back the
resonations from the sonic booms. This interfered with their measurements.
In response BHP used a section 45D of the Trade Practices Act to gain
a court injunction to stop Greenpeace from coming near the testing boat.
The injunction was taken out against Greenpeace, as well as the captain
of the Rainbow Warrior, Joel Stewart, and the campaign coordinator,
The application to the court also "sought
declarations against Greenpeace for conspiracy and trespass and an order
for damages." Damages including the costs such as the hire of the boat
and lost oil production, could potentially have amounted to millions
of dollars. But BHP withdrew the charges before the case reached court.
This case has been cited by lawyers as an excellent example of legal
action being used against environmentalists "as it highlights the combination
of a number of different types of actions (breach of Section 45D, interference
with agreements, conspiracy and trespass) with a range of remedies (injunctions
and damages)." (Jamieson and Plibersek 1991).
The Trade Practices Act, whilst not
used much in the courts, is often used as a way of intimidating protesters.
It was threatened by the Forest Products Association against the North
East Forest Alliance activists who were trying to prevent logging in
the Chaelundi wilderness area. A separate court case, which declared
logging in this area illegal, saved the activists at the last minute
in this case. It was also used by Australian Paper and Pulp Manufacturers
(APPM) in 1993 to threaten The Wilderness Society in Tasmania which
was campaigning against the export of woodchips and by the Federal Airport
Corporation against fishing people who were interfering with the dredging
of Botany Bay to construct a third runway for Sydney's Mascot airport.
The fishing people were concerned that the dredging would adversely
affect the Bay and therefore reduce their fish catches by up to 75 percent.
The Australian Consumers Association (ACA) and the Australian Federation
of Consumers Organisations (AFCO) have had legal advice that consumer
boycotts against environmentally damaging products might also be illegal
under the same Act.
Secondary boycott provisions have also
been used against Canadians. In 1996 the Japanese multinational, Daishowa
Paper Manufacturing Co. won a case in an Ontario court against the Toronto-based
Friends of the Lubicon (FoL) which was promoting an international consumer
boycott of Daishowa's packaging products. The court decision prevents
FoL from picketing or threatening to picket Daishowa customers and Daishowa
is suing FoL for more than $5 million in damages.
Joyce Nelson, 'Japanese Timber Giant
SLAPPs Canadian Natives', Earth Island Journal (4 January 1996)
, p. 21.
Robert Jamieson and Ray Plibersek, 'Legal
Rights of Industry Against Conservationists' Paper presented at the
Third Annual Pollution Law Conference, Sydney 28-29 October and Melbourne
30-31 October 1991.
Peter Montague, Why
is EPA ignoring Monsanto?
Rachel's Environment & Health Weekly, No. 563, 11 September