Recent protests by the Boycott, Divestment and Sanctions campaign were referred to the Australian Competition and Consumer Commission by the Hon. Michael O’Brien MP, Victorian Minister for Consumer Affairs on 5 August 2011. The minister requested that the protests be investigated under the Competition and Consumer Act 2010 (CCA), which prohibits secondary boycotts. The letter was the subject of a media release issued by the Victorian Government on 8 August 2011.
Protesters picketed the premises of the Max Brenner chain of chocolate shops as part of a campaign to boycott businesses with Israeli ownership and which carry on business with the Government of Israel. Protests have taken place in Melbourne, Sydney and Brisbane and allegedly prevented potential customers from entering Max Brenner outlets.
After careful assessment, the ACCC considers that this protest activity does not contravene section 45D of the CCA as it does not have the effect or likely effect of causing substantial loss or damage to the Max Brenner shops in question. Relevant factors here are the infrequent nature of the protests, their limited duration, and the difficulty in apportioning any revenue impact to this activity versus other factors.
The ACCC also notes that the relevant state police authorities have a range of directly relevant powers to address the conduct at issue. Victoria Police has already charged a number of individuals with trespass, besetting a premise and riotous behaviour arising out of one of the protests in Melbourne.
Given all of the above the ACCC has decided not to take any further action in relation to this matter at this time. The ACCC will, however, be monitoring any future protests and considering whether they constitute a breach of the CCA.
Section 45D of the CCA prohibits a person in concert with a second person from engaging in conduct:
(a) that hinders or prevents a third person from supplying goods or services to a fourth person or a third person from acquiring goods or services from a fourth person; and
(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.