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MOOT PROBLEM

19-‐20 September 2015

University of Melbourne

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TABLE OF CONTENTS

Table of Contents .............................................................................................................. 2

Instructions for Competitors .............................................................................................. 3

Suggested Texts and Legislation ........................................................................................ 4

Agreed Facts ...................................................................................................................... 6

ACCC Investigation and Subsequent Proceedings .............................................................. 10

Exhibit 1 ........................................................................................................................... 12

Exhibit 2 ........................................................................................................................... 13

Exhibit 3 ........................................................................................................................... 14

Exhibit 4 ........................................................................................................................... 15

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INSTRUCTIONS FOR COMPETITORS Nature of Moot Problem

1. Factory farming, food labelling and covert surveillance were selected as the topics for ANIMAL 2015 because they are very important issues in the Australian animal protection sphere and have received a significant amount of public and media attention in recent years.

2. Animal law, as a discipline, is not a separate and distinct area of substantive law like, for instance, the law of contract, the law of torts, or criminal law. Rather, animal law cuts across a broad range of disciplines. Accordingly, an animal law moot problem will necessarily involve at least one substantive area of law.

3. The substantive areas of law relevant to the moot problem are consumer law and evidence law. In recent years animal lawyers have used consumer law as an important and creative pathway to raise awareness about the conditions of intensive farming and by consequence, bring about law reform. An example can be found in the case of Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 2) [2012] FCA 19. Evidence law is similarly topical, and issues relating to ‘illegally’ obtained evidence are becoming increasingly important to animal law cases.

General Information

1. Umbrella Corporation Pty Ltd, Hive Industries Pty Ltd, Animals Aware Australia Ltd and all other entities and circumstances in this moot problem are fictional.

2. It is not possible to provide all of the information that one would have access to in reality in the context of a scenario of this nature. Competitors should not extrapolate upon the information that has been provided unless absolutely necessary, and any such extrapolation must be reasonable and not intended to secure an unfair advantage.

3. Competitors need not concern themselves with any purely technical matters of civil or criminal procedure relevant to the moot problem including the originating application by the ACCC and the interlocutory application by the Respondent. Judges will not entertain any submissions that are not directly related to the legal issues relevant to the moot problem.

4. The relevant facts to be relied upon are those listed in the Agreed Facts and Exhibits only.

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SUGGESTED TEXTS AND LAW A list of suggested text and legislation to assist competitors in their preliminary preparation for ANIMAL 2015 can be found below. These are preliminary suggestions only and students should conduct their own research outside of these suggestions. Textbooks Consumer law, evidence law and animal law textbooks that may provide competitors with helpful information relating to the moot problem include: Bruce, Animal Law in Australia: An Integrated Approach (1st ed, 2012) Bruce, Consumer Protection Law in Australia (LexisNexis, 2013) Caulfield, Handbook of Australian Animal Cruelty Law (2009) CCH, Consumer Law, Online Corones, The Australian Consumer Law (2nd ed, 2013) Malbon and Nottage (editors) Consumer Law and Policy in Australia and New Zealand (2013) McEwen, Animal Law: Principles and Frontiers (2011) [available online at www.bawp.org.au] Miller, Miller’s Australian Competition and Consumer Law Annotated (37th ed, 2015) Odgers, Uniform Evidence Law (11th ed, 2014) Steinwall, Annotated Competition and Consumer Act 2010 (2015 edition) Case Law There are a significant number of cases relevant to the legal issues raised in the moot problem. Competitors are encouraged to locate the most relevant and recent judicial authority to support their submissions.

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Legislation There are a number of legislative instruments relevant to the moot problem and to evidence and consumer law generally. Those referred to in the moot problem are listed below. Australian Charities and Not-‐for-‐profits Commission Act 2012 (Cth) Australia New Zealand Food Standards Code (until 1 March 2016) Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS 4696:2007)

Competition and Consumer Act 2010 (Cth) Criminal Code Act 1995 (Cth) Evidence Act 1995 (Cth) Federal Court Rules 2011 (Cth) Federal Court of Australia Act 1976 (Cth) Model Code of Practice – Domestic Poultry (2002) Model Code of Practice for the Welfare of Animals: Livestock at Slaughtering Establishments (2002) National Animal Welfare Standards for Livestock Processing Establishments Preparing Meat for Human Consumption 2009-‐2010 (2nd Ed) (Australian Meat Industry Council) The Criminal Code Amendment (Animal Welfare) Act 2014 (Cth) is fictional and has been created for the sole purpose of this moot.

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AGREED FACTS The Retailer – Umbrella Corporation Pty Limited

1. Umbrella Corporation Pty Limited (Umbrella) is a large, vertically integrated wholesaler and retailer of food and groceries throughout all States and Territories of Australia. It competes with other food and grocery retailers in both the upstream market for the acquisition of food and groceries from primary suppliers such as farmers and food manufacturers as well as the downstream retail market in selling those food and grocery products to Australian consumers.

2. Umbrella owns and operates retail grocery stores of all sizes, from large supermarket stores to smaller corner stores. Umbrella stores are highly visible and trade under the distinctive banner “Red Queen Stores”.

3. Umbrella does not actually grow the food nor manufacture the different grocery items available for purchase in each of its stores. Likewise, Umbrella does not own abattoirs or animal farms in offering animal products such as meat, milk, fish and eggs for sale. Instead, Umbrella enters into long-‐term supply contracts with farmers, manufacturers, abattoirs and egg producers for those products.

4. Upon receipt of eggs, Umbrella re-‐packages them in its own cartons and sells them as a “home brand” product (Umbrella Home Brand Eggs). The Umbrella Home Brand Eggs are sold only at stores trading as Red Queen Stores. The words ‘Home Brand’ appear prominently on the top of the carton. The cartons in which the eggs are sold display on the top a plump chicken in a sunny, green pasture-‐like environment in the foreground, with a typical red barn in the background. Fine print on the top of the packaging (7 point Arial font) indicates that each carton, which is predominantly grey in colour contains a combination of eggs obtained from caged chickens as well as cage-‐free chickens (Exhibit 1). The Umbrella Home Brand Eggs are not separately displayed within the supermarket – that is they sit where all eggs that are being sold sit. On the shelf above the Umbrella Home Brand Eggs are several different brands of eggs, all which prominently but in various styles bear the words ‘Cage-‐free’. On the shelf below the Umbrella Home Brand Eggs are several different brands of eggs, all, which prominently, but in various styles bear the words ‘Cage eggs’ (Exhibit 3). The Umbrella Home Brand Eggs are marketed at a higher price point than purely caged eggs, with a price level similar to other free-‐range egg retailers.

5. Upon receipt of meat from suppliers, Umbrella uses its own in-‐house butchers to prepare all meat for sale. The meat is then packaged in Styrofoam trays with plastic wrap and then labelled. In compliance with Standard 2.2.1 of the Australia New Zealand Food Standards Code (Food Standards Code), each label identifies the cut of meat, its weight, country of origin and ingredients.

6. Like many retail food and grocery retailers, Umbrella caters for the religiously determined dietary requirements of Muslim and Jewish communities in and around

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most Australian capital cities. Both Halal (Muslim) and Kosher (Jewish) religious requirements mandate that animals must not be stunned prior to being slaughtered.

7. Ordinarily, animals intended for human consumption are required to be slaughtered in compliance with:

a. the Australian Standard for the Hygienic Production & Transportation of Meat and Meat Products for Human Consumption (AS 4696:2007) (CSIRO Standard);

b. the Australian Meat Industry Council’s National Animal Welfare Standards for Livestock Processing Establishments Preparing Meat for Human Consumption 2009-‐2010 (2nd Ed) (AMIC Standards) and

c. the Standing Committee on Agriculture and Resource Management (SCARM) 2002 Model Code of Practice for the Welfare of Animals: Livestock at Slaughtering Establishments (SCARM Code).

8. Each of these Standards/Codes require that animals be stunned prior to slaughter but contain specific exemptions if an animal is to be slaughtered according to religious rituals.

9. In those suburbs where there is specific demand, halal and kosher meat products are separately identified and refrigerated. They are thus physically separated from meat products that have not been prepared according to halal and kosher requirements. However, in the majority of Australian Red Queen Stores, some halal and kosher meat products are sold, and are not separately stored or labelled but are simply labelled in the same manner as other meat products and do not state the words ‘Halal’ or ‘Kosher’ on them nor carry any certification. In these latter stores, a person purchasing the product would not know that the preparation was either halal or kosher.

The Egg & Poultry Supplier – Hive Industries Pty Ltd

10. In 2010, Umbrella entered into a contract for the supply of both broiler hens and eggs from Hive Industries Pty Ltd (Hive). Hive is a large national producer of poultry and eggs. Hive does not sell poultry or eggs directly to the public but earns the majority of its profits from the wholesale supply of those products to national retail chains such as Umbrella and smaller independent grocery retailers.

11. Hive manages several large industrial properties in each Australian State and Territory that contain 'growing and laying sheds'. Some sheds are dedicated to the growing of broiler hens while others are dedicated to the production of eggs. Hive consistently maintains that each shed complies with the requirements of the Commonwealth Model Code of Practice for the Welfare of Animals – Domestic Poultry (4th Ed, 2002).

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12. When it receives orders from food and grocery retailers such as Umbrella, Hive slaughters, prepares and packs the chickens in bulk before despatching them to the retailers who then re-‐pack and sell the chickens. Likewise, Hive collects the eggs, packs them in bulk before despatching them. Upon receipt, the retailers re-‐package the eggs for retail sale.

The Animal Welfare Group – Animals Aware Australia Ltd

13. Animals Aware Australia Ltd (AAA) is a public company limited by guarantee, incorporated under the Corporations Act 2001 (Cth). As a registered not-‐for-‐profit organisation and charity, it is principally regulated by the Australian Charities and Not-‐for-‐profits Commission Act 2012 (Cth) (ACNC Act) and relevant Governance Standards.

14. AAA’s Constitution relevantly provides that its objects are (inter alia) (Exhibit 2): a. to advocate for the welfare of animals throughout Australia; b. to investigate and expose actual and potential animal welfare abuses,

whether private or corporate; c. to lobby Local, State and Commonwealth governments for improved animal

welfare regulation; d. to educate Australians about the current state of animal welfare regulation

and practice; and e. to liaise with domestic and international animal welfare organisations in

furthering initiatives for the welfare of animals. 15. For the past ten years, AAA has been effective in both advocating for better

regulation of animal welfare as well as investigating and exposing systematic abuses of animal welfare. It has been particularly effective in exposing animal welfare abuses in corporate animal farming operations, often relying on hidden cameras or undercover employees as a source of evidence.

16. In February 2014, AAA decides to investigate the animal welfare practices at several Hive poultry and egg (from both cage free and cage production systems) producing sheds in Victoria.

17. On 7 February 2014, AAA flies unmanned drones over several sheds operated by Hive (it does not fly inside the sheds but takes some footage and photographs of inside the sheds via windows). The drones are equipped with digital video surveillance cameras that record the activities in and around those sheds. The footage clearly identifies the shed as belonging to Hive Industries Ltd.

18. Subsequent analysis by AAA of the drone footage indicates that at each of the Hive properties, the number of layer hens in the outdoor range at any time is very large. AAA calculates that the average stocking density at each of the Hive properties in the outdoor range to be around 1600 – 2000 layer hens per hectare; a density that

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exceeds the maximum stocking density prescribed by the Model Code of Practice – Domestic Poultry (2002).

19. The video footage also captures images of Hive employees beak trimming all birds shown in the video. Hive employees were not aware that their activities were being filmed. The video also captures images of chickens being slaughtered according to halal or kosher practices.

20. On 20 February 2014, a thumb drive of the images is sold to the popular investigative television program “A Current Bizarre”. On 26 February 2014, the drone footage is shown on national television creating outrage across the country.

The Criminal Code Amendment (Animal Welfare) Act 2014 (Cth)

21. In January 2014, after much lobbying by certain high-‐profile representatives of the agricultural and primary industries sectors, the Commonwealth Government enacts the Criminal Code Amendment (Animal Welfare) Act 2014 (Cth) (Act). The Act, (which has been created for the sole purposes of this moot), is operative from 14 January 2014 and amends the Criminal Code Act 1995 (Cth) by inserting several new sections intended (according to the Explanatory Memorandum) to better protect animals from cruelty and protect “animal enterprises” from the destruction or damage of property.

22. Most relevantly, section 383.5 of the Commonwealth Criminal Code, as inserted by the Criminal Code Amendment (Animal Welfare) Act 2014 provides (inter alia):

383.5: Failing to report malicious cruelty to animals after recording it (1) A person commits an offence if:

(a) the person makes a visual record of an activity engaged in (within Australia) by another person; and (b) the person makes the record because the person believes the activity to be malicious cruelty to animals; and (c) either or both of the following subparagraphs apply:

(i) within one business day after the person makes the record, the activity is not reported to an authority of the Commonwealth, or of the State or Territory in which the activity occurred, with responsibility for enforcing laws relating to animal welfare; (ii) within 5 business days after the person makes the record, the record is not given to such an authority; and

(d) subsection(2) applies. Penalty: 30 penalty units.

(2) The offence in s 383.5 applies if: (a) the record is made:

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(i) by a federally regulated entity; or

(ii) in constitutional trade or commerce; or (iii) in a Territory or a Commonwealth place; or

(b) the recorded activity is engaged in:

(i) by a federally regulated entity; or (ii) in constitutional trade or commerce; or (iii) in a Territory or a Commonwealth place.

(3) A visual record of the kind referred to in subsection (1) is deemed to have been obtained improperly for the purpose of section 138(1) of the Evidence Act 1995 (Cth).

THE ACCC INVESTIGATION AND SUBSEQUENT PROCEEDINGS Investigation

1. The Australian Competition and Consumer Commission (ACCC) is the national competition and consumer regulator. Established under Part II of the Competition and Consumer Act 2010 (Cth) (CCA), the ACCC has extensive powers to investigate and litigate both civil and criminal contraventions of the anticompetitive provisions of the CCA as well as conduct in breach of the Australian Consumer Law (ACL).

2. In April 2015, the ACCC receives the video images of the Hive sheds taken by the AAA drone. It adds that evidence to a series of complaints against Umbrella that it has received since the television program. Those complaints concern the way that it advertises and sells eggs obtained from Hive as well as the way that it sells meat that has been slaughtered according to halal and kosher practices.

Originating Application by the ACCC

3. Following an investigation, on 6 July 2015, the ACCC institutes proceedings in the Federal Court of Australia against Umbrella (Respondent). The ACCC alleges that Umbrella has engaged in misleading or deceptive conduct in breach of s 18 of the ACL. The ACCC seeks a variety of orders including injunctive relief and corrective advertising which would see that all future meat products be labelled (where relevant) as either “Halal” or “Kosher” or “Slaughtered According to Religious Ritual”.

4. In its statement of claim, the ACCC alleges that Umbrella contravened s 18 of the ACL by reason of the following conduct engaged in between April 2014 and April 2015:

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a. producing or causing to be produced, egg cartons in its “Home Brand” Range

displaying images of chickens roaming on green pastures, accompanied by images of farms. In doing so, Umbrella represented that eggs from the “Home Brand” range were obtained from chickens raised in green outdoor pastures in circumstances where the chickens had, at all times, substantial space in an outdoor environment permitting them to roam freely; and

b. causing all meat products to be sold in circumstances that did not inform consumers that the meat products originated from animals that had been slaughtered according to religious rituals.

Response by Umbrella

5. On Monday 13 July 2015, Umbrella filed an application and supporting affidavit seeking the following orders:

a. Judgement be entered for the respondent pursuant to s 31A of the Federal Court of Australia 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011;

b. Costs.

Memoranda of Argument

6. Applicants must prepare a Memoranda of Argument in line with the template provided in the Competition Rules setting out arguments in relation to:

a. why the video footage captured by the AAA drone (which forms an important part of the ACCC’s case) should be admitted against the Respondent under s 138 of the Evidence Act 1995 (Cth); and

b. why the ACCC has a reasonable prospect of success in establishing that the Respondent has engaged in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law.

7. Respondents must prepare a Memoranda of Argument in line with the template provided in the Competition Rules setting out arguments in relation to:

a. why the video footage captured by the AAA drone (which forms an important part of the ACCC’s case) should not be admitted against the Respondent under s 138 of the Evidence Act 1995 (Cth); and

b. why the ACCC has no reasonable prospect of success in establishing that the Respondent has engaged in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law.

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EXHIBIT 1 – Egg Carton Diagram

This is a real size diagram of Umbrella’s Home brand egg cartoon.

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EXHIBIT 2– AAA’s Constitution [Extract] This is an extract of Rule 2.1 of AAA’s Constitution. 2.1. Objects The objects for which the Company is establish and maintained are to:

a. To advocate for the welfare of animals throughout Australia; b. To investigate and expose actual and potential animal welfare abuses, whether

private or corporate; c. To lobby Local, State and Commonwealth governments for improved animal

welfare regulation; d. To educate Australians about the current state of animal welfare regulation

and practice; e. To liaise with domestic and international animal welfare organisations in

furthering initiatives for the welfare of animals; f. To market and publicise the Company and these Objects with enthusiasm; g. To ensure at all times that directors, members, volunteers and providers to the

group, conduct any dealings for and on behalf of the Company, with financial integrity;

h. The borrowing and raising of money in any manner and on terms the Board thinks fit;

i. To pursue through itself or others, such commercial arrangements, including sponsorship, fundraising and market opportunities, as are appropriate to further these Objects; and

j. To undertake to do all things or activities which are necessary, incidental or conducive to the advancement of these Objects.

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EXHIBIT 3 – Annotated Photograph Below is an annotated photograph of from a random Red Queen Store. Competitors should assume that this general layout is usual in all Red Queen Stores. The text inside each of the red circles indicates what ‘text’ each of the egg cartoons on those shelves bear, for example, all cartoons on the left are marked ‘Free range eggs’. The cartoons in the section marked ‘Umbrella’ bear the text described in the Agreed Facts.

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EXHIBIT 4 – Photographs Below is a selection of stills from the video footage captured by the AAA Drone outside the sheds and via telescope lens into the windows of sheds. PHOTOGRAPHS FROM FARMS THAT SUPPLY THE ‘CAGE EGGS’ FOR THE UMBRELLA HOME BRAND EGGS Photograph 1 This photograph is taken from outside a shed via a window and evidences the husbandry practice of de-‐beaking. The layer hen is fully grown.

Photograph courtesy of Jo-‐Anne McArthur, We Animals

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Photograph 2 This photograph is taken from outside a shed via a window. The layer hen is fully grown. The hen underneath is deceased. Above the live hen you can see the floor of the cage overhead, which has a wire floor.

Photograph courtesy of Jo-‐Anne McArthur, We Animals

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Photograph 3 This photograph is taken from outside a shed via a window. The layer hens are fully grown.

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Photographs courtesy of Animals Australia

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PHOTOGRAPHS FROM FARMS THAT SUPPLY THE ‘CAGE FREE EGGS’ FOR THE UMBRELLA HOME BRAND EGGS Photograph 5 This photograph is taken from outside a shed via a window. The layer hens are fully grown.

Photograph courtesy of Google

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Photograph courtesy of Google

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Photograph 6 This is an aerial photograph taken by the AAA Drone above a Hive property.

Photograph courtesy of ABC News. Photograph 7 This is an aerial photograph taken by the AAA Drone above a Hive property.

Photograph courtesy of ABC News.

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