Exempting environmental protection boycotts from competition laws: Should purpose or public benefit be the test?

Secondary boycotts and boycotts affecting international trade are generally illegal in Australia, but for the past two decades boycott conduct has been permissible if it is for the dominant purpose of environmental or consumer protection. The exemption is housed in s 45DD(3) of Australia's competition law. This paper reviews Rural Export and Trading (WA) Pty Ltd v Hahnheuser, the leading case examining the exemption, and identifies a range of difficulties of interpretation and practical application inherent in s 45DD(3). An alternative approach is identified: there is an option of basing any exemption on case-by-case assessment of public benefit, relying on existing authorisation mechanisms in the competition law, instead of a generalised test of dominant purpose. Conduct and its effects, rather than purpose, would then be the focus of analysis. The paper also notes that current approaches to determination of public benefit chiefly address economic factors and suggests the need for a more refined approach giving greater emphasis to environmental and social considerations.