INHIBITING ECONOMIC COERCION BY GROUPS: AN EXAMINATION OF THE ECONOMIC TORTS AND ANTI-SECONDARY BOYCOTT LAWS IN AUSTRALIA A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy David John Goodwin LLB (Qld), Grad Dip Comm Law (Monash), M Bus (Logistics) (RMIT) Graduate School of Business and Law College of Business RMIT University September 2017 i CANDIDATE’S STATEMENT I certify that except where due acknowledgement has been made, the work is that of the author alone; the work has not been submitted previously, in whole or in part, to qualify for any other academic award; the content of the thesis is the result of work which has been carried out since the official commencement date of the approved research program; any editorial work, paid or unpaid, carried out by a third party is acknowledged; and, ethics procedures and guidelines have been followed. I acknowledge the support I have received for my research through the provision of an Australian Government Research Training Program Scholarship. (Signed) …………………………………………………….. David John Goodwin 15 September 2017 ii TABLE OF CONTENTS i Acknowledgements ix ii Thesis Abstract 1 CHAPTER ONE – THE SUBJECT AND OBJECTIVES OF THE THESIS I INTRODUCTION 2 II THE NATURE OF THE PROBLEM 6 A The Contest of Rights 7 B Uncertainties under Australian Law 8 C Control Mechanisms for the Economic Torts 9 D Illegality and Unlawful Means 11 E Combination and Relative Power 12 F Limited Recourse to Justification Defences 13 G Private Law and Fundamental Rights 13 H The Encroachment of Legislation 14 III ADDRESSING THE PROBLEM – THE ARGUMENT 16 IV METHODOLOGIES EMPLOYED 17 V ORGANISATION OF THE THESIS 18 CHAPTER TWO – THE COMPOSITION OF THE GENERAL ECONOMIC TORTS I INTRODUCTION 20 II INDUCING BREACH OF CONTRACT 22 III CONSPIRACY BY LAWFUL MEANS 24 IV CONSPIRACY BY UNLAWFUL MEANS 28 V INTIMIDATION 33 VI CAUSING LOSS BY UNLAWFUL MEANS 37 VII CONCLUSION: OPEN QUESTIONS SUMMARISED 42 iii CHAPTER THREE – THE EVOLUTION OF THE GENERAL ECONOMIC TORTS AND THE UNLAWFUL MEANS DEBATE I INTRODUCTION 44 II HISTORICAL DEVELOPMENT OF THE ECONOMIC TORTS 46 A The Early Cases 46 B The Inhibition of Trade Union Activities 47 C The Twentieth Century ‘Muddle’ 48 III THE NEW TRILOGY: KEY RECENT CASES 50 A OBG v Allan 50 B Total Network 53 C A.I. Enterprises 55 IV THE IMPLICATIONS OF ILLEGALITY 58 A The Difference of Views Surrounding Unlawful Means 58 B The Narrower View 59 C The Wider View 62 D Arguments for the Wider View 64 V CONCLUSION 66 CHAPTER FOUR – THE SEARCH FOR AN IMPROVED CONCEPTUAL MAP I INTRODUCTION 68 II THRESHOLD ISSUES 70 III HEYDON: AN EARLY AUSTRALIAN VIEWPOINT 73 IV WEIR: THE PROPER NATURE OF THE ECONOMIC TORTS 76 V CARTY: PROMOTING THE ABSTENTIONIST APPROACH 78 VI WEINRIB AND STEVENS: RIGHTS-BASED THEORIES 86 VII NEYERS: EXPLORING RIGHTS-BASED JUSTIFICATIONS FOR THE TORTS 88 VIII DEAKIN AND RANDALL: A NEW CONCEPTUAL MAP FOR THE FUTURE 94 IX CONCLUSION 98 iv CHAPTER FIVE – THE APPLICATION OF POLICY TO SHAPE THE ECONOMIC TORTS I INTRODUCTION 100 II CORRECTIVE JUSTICE THEORY 102 A The Corrective Justice Viewpoint 102 B The Application of Corrective Justice to the Economic Torts 103 C Critiques of the Corrective Justice Framework 105 D Implications of an Approach based on Corrective Justice 108 III DISTRIBUTIVE JUSTICE THEORY 109 A The Distributive Justice Viewpoint 109 B The Application of Distributive Justice to the Economic Torts 110 C A.I. Enterprises: An Illustration of Difficulties Created by the Application of Policy 114 IV INTERMEDIATE THEORIES 118 V CONCLUSION 120 CHAPTER SIX – THE CONTEST OF RIGHTS AND INTERESTS I INTRODUCTION 122 II THE RIGHTS-BASED VIEW OF THE ECONOMIC TORTS 123 III RIGHTS AND INTERESTS: DOES TERMINOLOGY MATTER? 126 IV PROTECTED INTERESTS TORT-BY-TORT 128 A Inducing Breach of Contract 128 B Conspiracy 131 C Intimidation 135 D Causing Loss by Unlawful Means 136 V THE VEXED NOTION OF PUBLIC INTEREST 138 VI THE WEIGHING OF COMPETING RIGHTS AND INTERESTS 141 VII CONCLUSION 145 v CHAPTER SEVEN – JUSTIFICATION DEFENCES I INTRODUCTION 146 II JUSTIFICATION DEFENCES TORT-BY-TORT 148 A Inducing Breach of Contract 149 B Lawful Means Conspiracy 153 C Unlawful Means Conspiracy 155 D Intimidation 156 E Causing Loss by Unlawful Means 158 III POTENTIAL BASES FOR EXPANSION OF JUSTIFICATION 159 IV CONSTRAINTS ON THE EXPANSION OF THE DEFENCES 165 A The Bipolarity Constraint 165 B The ‘Special Reason’ Requirement 165 C Measuring ‘Public Benefit’ 166 D The Statutory Path 168 V JUSTIFICATIONS AND ILLEGALITY 169 VI CONCLUSION 174 vi CHAPTER EIGHT – ENVIRONMENTAL CAMPAIGNS AND THE GENERAL ECONOMIC TORTS I INTRODUCTION 176 II ENVIRONMENTAL CAMPAIGNS AS AN ARENA FOR LITIGATION 180 A Application of the Economic Torts to Environmental Activism 180 B The International Experience 182 C The Australian Experience 184 III CONTROL MECHANISMS 187 A Justification Defences 187 B Intention and Targeting 189 C The Unlawful Means Lever 190 D Statutory Exemptions 192 IV CONCLUSION 197 CHAPTER NINE – EXEMPTING ENVIRONMENTAL PROTECTION BOYCOTTS FROM COMPETITION LAWS I INTRODUCTION 198 II OUTLINE OF THE LEGISLATIVE SCHEME 200 III A BRIEF HISTORY 201 IV THE VARIOUS FORMS OF BOYCOTT 202 V KEY OPERATIVE PHRASES IN THE LEGISLATION 204 VI RATIONALES 207 A The Rationale for Prohibition 207 B The Rationale for the s 45DD(3) Exemption 208 C Pro-Business Arguments and the Case for ‘Case-by-Case’ 212 vii VII RURAL EXPORT: THE DIFFICULTIES WITH A DOMINANT PURPOSE TEST 215 A The Rural Export Case 215 B Lack of Definition of Key Terms 216 C Characterising Dominant Purpose as Substantially Related to Environmental or Consumer Protection 217 D Establishing the Purpose 219 E Condoning Illegal Acts? 220 VIII AUTHORIZATION AND PUBLIC BENEFIT 223 IX CONCLUSION 226 CHAPTER TEN – CONCLUSION I INTRODUCTION 228 II SUMMARY OF FINDINGS 230 III SIGNIFICANCE OF THE FINDINGS 232 IV AREAS FOR FURTHER RESEARCH 233 V CONCLUDING OBSERVATIONS 234 BIBLIOGRAPHY 236 Books, Journal Articles and Online Articles 236 Reports and major Submissions 246 viii ACKNOWLEDGEMENTS I would like to thank RMIT University for the high levels of assistance and encouragement provided to me by members of the Graduate School of Business and Law. I am extremely grateful for the supervision I have received from Professor John Glover, who generously guided me in the formulation of my thesis, reviewed my drafts rigorously and regularly gave insightful suggestions as to how it might be evolved and strengthened. Professor Anthony Forsyth, as my Associate Supervisor, also gave much-appreciated guidance and offered the benefit of his experience. Dr Paul Gibson has also been a great support, and stepped in as an assisting supervisor during periods when my principal supervisors were on research leave. I am also grateful to Associate Professor Roderick Bagshaw of Oxford University and Magdalen College for generously reading a draft of Chapters Five and Six and offering constructive suggestions as to how those chapters might be developed. Chapter Eight of this thesis was published as ‘Lawyers, Gunns and Money: An Australian perspective on environmental campaigns and the economic torts’ (2016) 23 Torts Law Journal 230. Chapter Nine was published as ‘Exempting environmental protection boycotts from competition laws: Should purpose or public benefit be the test?’ (2015) 23 AJCCL 260. My thanks go to the Editors of those journals and the peer reviewers they assigned for a range of helpful edits. I would like to thank Poppy Jacobs for reading this thesis and acting as its overarching Editor, and for making a range of suggestions as to formatting and referencing. Several members of the Graduate School of Business and Law have provided consistent support. I would like to thank Professor Mark Farrell, Head of the Graduate School of Law throughout the period I worked on this thesis, Professor Mark Leenders and Associate Professor Kathy Douglas for their unflinching guidance and friendship. I also want to acknowledge Professor Don Feaver, who encouraged me at the outset of my PhD journey. Finally, I thank my wife Carolyn Goodwin, and my children Tom and Hamish, for their incredible tolerance throughout this venture and my parents Kay and Ken Goodwin for setting me on my path. My greatest fortune in life has been to belong to a loving family which values academic endeavours and hard work. David Goodwin Melbourne September 2017 ix THESIS ABSTRACT This thesis explores legal boundaries restricting economic coercion, by persons in groups and by groups acting in concert. When groups take collective action targeted at another party there is potential for considerable damage to be inflicted. What forms of coercion should the law allow, what justifications are advanced for conduct and by what means should the ambit of prohibitions be confined? The issues are studied within the context of the private political contest between activist groups such as environmental NGOs, and for-profit corporations. The boundaries of permissible conduct have historically been defined by the rules of common law economic torts - causing loss by unlawful means, conspiracy, intimidation and inducing breach of contract – and in more recent times by statutory interventions by Parliaments, including limitations on boycott conduct under competition laws. Through doctrinal research and analysis of judicial opinions, the current settings of the laws in these areas, as they apply in Australia, are examined. The study takes account of normative and policy considerations, including the advances that have occurred in the practice and effectiveness of modern-day activism. It addresses the challenge of setting defensible legal compromises in situations where there are conflicts between competing rights and priorities. The study outlines modifications and adaptations of existing rules that may be considered by lawmakers in order to improve the coherence of long-established legal doctrines, while enhancing societal welfare.