Live Export

Highly charged days that brought an industry to its knees

James Nason, 04/06/2020

THE developments that led to the controversial and unlawful – as  federal Court Justice Stephen Rares ruled on Tuesday – suspension of Australia’s entire cattle export trade to Indonesia have been discussed and reported many times over the past nine years.

For those with the inclination and the time to read it, Justice Rare’s 496 paragraph judgement (which can be read in full here) provides an absorbing and objectively detached account of how the controversial saga unfolded, including details on highly-charged behind-the-scenes meetings, Government communications and the standpoints of various key identities on all sides of the issue.

Just some of the insights and disclosures that stand out from Justice Rares’ summary of the event which unfolded precisely nine years ago to the week include:

The Government requested vision from RSPCA and 4Corners before the episode aired. They refused:

99    In addition, on 24 May 2011, Mr Lawrie (Minister Joe Ludwig’s advisor Alastair Lawrie) emailed the Minister with some “lines”, being answers, including which he had already told Mr Negus that, I infer, he might say in answer to questions in Senate estimate hearings on the topic of live animal exports. Mr Lawrie’s lines foreshadowed that he thought that the Four Corners broadcast would occur on 30 May 2011. Mr Lawrie noted that the RSPCA and Four Corners had refused requests for the Minister and the Department to see the footage.

The judge was critical of the Federal Government and Australian cattle industry for their lack of action between learning about the footage in April 2011 and the broadcast in late May 2011:

88    … by early April 2011 both the Minister and his Department knew that there was likely to be a major public affairs broadcast in the near future that would feature some graphic and disturbing footage of cattle being slaughtered or mistreated at probably four sites in Indonesia. Yet, the Department did not prepare, and the Minister did not seek, any policy response beyond talking points, despite the potential impact on a substantial domestic industry, Australia’s international trade, reputation and its relationship with the Indonesian Government. Likewise, the industry was hardly being proactive, beyond cooperating with the producers of Four Corners.

The closed loop supply chains which were already in place in Indonesia on 7 June 2011, operated by Elders under Dick Slaney in Indonesia and Indonesian importer Santori, were integral to the ultimate judgement. The Minister’s failure to grant an exception to allow trade to these supply chains to continue, and to others such as Greg Pankhurst and Dicky Adiwoso’s Agro Biri Perkasa that would have been able to achieve that status relatively quickly, amounted to ‘reckless indifference’:

382 … the Minister knew of, or was recklessly indifferent to, the injury that a control order with a total prohibition on all livestock exports was calculated to produce on persons, such as Elders, who could have met his requirements immediately that would justify him making an exception: Mengel 185 CLR at 370–371. The Minister’s decision to make the Second Control Order had the immediate and intended impact of suspending a very significant amount of current and planned trade. He made that decision not caring that it would damage unjustifiably persons in Australia as well as some businesses in Indonesia, including abattoirs and existing supply chains that already did, or could without difficulty, ensure that cattle exported from Australia would not be mistreated.

Wellard, the Australia’s major exporter to Indonesia, proposed an ESCAS style scheme to Minister Ludwig well in advance of the second control order:

146    On 3 June 2011 Wellard wrote to the Minister. ….. It attached its own animal welfare plan to the letter in which it warranted that all feeder cattle would only be exported to Indonesia after 2 June 2011 under tripartite commercial contracts between Wellard and both the importer and abattoir owner. It said that those contracts would bind the parties to scan and keep records of each animal that Wellard supplied and, relevantly, would require, among a detailed list of matters, the abattoir owner to evidence compliance with the OIE Code and to use stunning.

It would be reasonable to assume that before making a decision to impose a high-impact, far-reaching trade shutdown a Minister would have a wealth of documented advice to support such a decision. Clearly that wasn’t the case:

147    On 3 June 2011, Mr (Alastair) Lawrie asked Ms Mellor for information about the then current status of export permits and applications….. Mr Lawrie forwarded that email directly to the Minister at about 2.30pm that day in one of the very few documents, other than the three Departmental minutes and his media interviews, in evidence as to anything that the Minister saw or said in the lead up to his making the Second Control Order.

(Further, in his verbal summary, Justice Rares noted that when the Minister made the ban order, he “had no Departmental advice to make an order in a form that affected only exports to Indonesia, had no legal advice that he could make lawfully the, or any, order in such a form; and there was a real risk that, if he made the order in the form he adopted, it might be invalid.”)

The document also revealed Wellard had previously sued the Government over the prevention of a ship departing from Australia:

    1. Wellard had sued a former Secretary in respect of his decision to prevent a shipment leaving for the Middle East, but this action had settled at a mediation.

With every reported breach of ESCAS come calls by animal rights groups and mainstream media journalists for the trade to be banned. But it is akin to be “crying to the moon” to expect any system to never have transgressions, Justice Rares noted:

336    Of course, no regime or system could offer or ensure that there would never be cases of transgression of or departure from whatever standard applied. Human conduct does not work that way. The best that can be hoped for is that a system, regime or law will set a standard or norm of conduct that will be adhered to in the ordinary course of affairs. Thus, it would be crying to the moon to expect a regime that would operate so that there could never be the possibility of any leakage of one or more animals from a closed loop supply chain or inhumane treatment of livestock within it.

The minister was advised to consult the Indonesian Government before making the controversial ban decision. He signed a letter but it was never sent.

174    At some point on 6 June 2011, Mr (Philip) Glyde provided a Departmental minute for the Minister. It recommended that he sign a draft letter to his Indonesian counterpart, Minister Suswono, formally advising him of the effect of the First Control Order. The draft letter referred to the Indonesian Ambassador having told senior officials in the Department that the behaviour shown on the Four Corners program was illegal. It sought in-country cooperation from Indonesia for officials and animal welfare experts to secure the outcomes in Indonesian facilities that the Government was seeking. Although the Minister signed the letter on 6 June 2011, it was never delivered to Minister Suswono.

Is it any wonder the Indonesian Government was so angry?

340    The Minister’s decision on 7 June 2011 to impose a prohibition in the Second Control Order on the export of all livestock only to Indonesia for 6 months had an operation that was unequal in its impact on the industry. That is because exports of livestock could still be made to any other country or market, regardless of the standard there of animal welfare, yet the Second Control Order prevented everyone engaging in that trade to Indonesia, including persons who did or could, immediately or within a reasonable time short of six months, export livestock to Indonesia in a closed loop system that complied with, or was no less effective than, the standards of animal welfare in the OIE Code.

The three common questions Justice Rares identified and his answers and reasons:

(1)    Was the Second Control Order valid?

It was invalid for the reasons at [317]–[363] above.

(2)    Did the Minister commit the tort of misfeasance in public office when he made the Second Control Order?

The Minister did commit the tort because he acted recklessly as to both his power to make the Second Control Order and the fact that persons engaged in the live export trade to Indonesia would suffer harm from it unjustifiably, for the reasons at [364]–[395] above.

(3)    What would have happened had the Minister acted lawfully?

The Minister would have made a control order that provided exceptions to the general prohibition in the Second Control Order in, or to the effect of, the exceptions clause in cl 5 of the First Control Order for the reasons at [404]–[427] above, and provisionally [428]–[462].


Your email address will not be published. Required fields are marked *

Your comment will not appear until it has been moderated.
Contributions that contravene our Comments Policy will not be published.


Get Beef Central's news headlines emailed to you -