Earlier this month, the Federal Court found the Gillard’s government’s controversial 2011 live export ban was unlawful.
But this is not a problem for the former government, who imposed the ban.
It is one the current Morrison government has to grapple with.
Not only do they face millions of dollars in damages, but the Federal Court judgment raises serious questions about the limits of ministerial decision-making.
How did this start?
In June 2011, then agriculture minister Joe Ludwig issued a snap, blanket ban on Australia’s live cattle exports to Indonesia for six months.
This followed a Four Corners report featuring disturbing footage of the treatment of Australian cattle at Indonesian abattoirs.
At the time the footage aired, the minister was already in discussion with exporters about the conditions in abattoirs. Several “closed loops” had been created in which the entire journey of an animal from Australia to the abattoir in Indonesia had been subjected to quality control.
But the footage was so shocking, there was public pressure to do more.
Ludwig issued orders under the Export Control Act to suspend live cattle exports to Indonesia, without exceptions.
While the ban was celebrated by animal welfare groups, it angered the live cattle industry. It caused great difficulties for exporters in the process of shipping stock and they suffered significant losses and additional costs.
In 2014, the Northern Territory-based Brett Cattle Company launched a class action against the agriculture minister and the Commonwealth.
What did the Federal Court find?
The Federal Court handed down its landmark ruling on June 2.
Justice Stephen Rares found the ban was “capricious and unreasonable”, and Ludwig had committed the “tort of misfeasance” in public office by imposing the live export ban without regard to its possible illegality and the losses it would cause.
This means Ludwig either knew the ban was beyond his ministerial power, or was reckless as to whether it was. There was also recklessness regarding the possible harm that might result.
The key element here is the lack of an honest attempt to perform the functions of the ministerial office, with “honest” having the technical legal meaning of genuine belief that your action is lawful.
Rares wrote Ludwig “plunged ahead” with the ban, even though
he knew that he had no advice about whether it would be valid and that there was a real risk that it would not be.
What does this mean?
This means damages will be awarded to the plaintiffs in the class action, unless the former minister or the Commonwealth successfully appeal.
To date, 300 parties have joined the class action, calling for a reported $600m in compensation.
Apart from the price tag, the case is also potentially significant as a major restraint on ministerial discretion.
Read more: The ban on live sheep exports has just been lifted. Here’s what’s changed
While there have been other bans of particular forms of live exports since this one in 2011, ministers now know that they cannot simply impose a blanket ban, but must take legal advice and proceed with caution.
What happens now?
Having made his findings, Rares has now invited the parties to confer on how damages and costs will be calculated.
Ludwig seems unlikely to appeal. He did not give evidence in the case. While he may face personal liability, the Commonwealth is also liable.
The Morrison government is currently weighing up an appeal. The prime minister reportedly told a meeting of Coalition MPs earlier this month the judgement raised “real issues”.
Earlier this week, Attorney-General Christian Porter said he was still deciding about a possible appeal.
“I take a very cautious approach,” he told reporters in Canberra. “And what I want to understand is what are the potential implications of that decision for a range of industries, including the live animal export industry?”
Even though the current government is highly critical of the 2011 decision, no government would wish to have ministerial discretion restrained in this way.
Appealing is costly, but the Commonwealth has deep pockets.
Their preferred course at this stage, though, may be to reach agreement on damages and costs, rather than leaving these to the court. Porter says he won’t make a decision on an appeal until June 29, when final orders are delivered on the case.
What are the chances of a successful appeal?
An appeal would have to argue the judge made an error of law.
The judgment has been very carefully crafted and may well withstand appeal, but the principles at stake are worth testing.
As Porter reportedly told colleagues, the tort of misfeasance has been applied here in a way not seen before.
Regardless of whether an appeal is pursued, ministers are more likely to take more advice before acting in future.
However, nine years after the event, it is hard to see this as an effective form of ministerial accountability. The affected exporters look likely to finally get some compensation. But the cattle are long dead.
Matt Harveyis a Senior Lecturer in Law at Victoria University. This article is republished from The Conversation under a Creative Commons license. Read the original article.
THere was a suspension put in place. Not a BAN. For those struggling with English a Ban is something Permanent. Elders in previous editions of beef Central said they they shipped cattle 6 weeks after the origianal stoppage. People claiming they lost millions still had the cattle to sell at a later date. Today they have a very good Business. Imagine if the live Export trade had been closed down for good as the AA was hoping to do then they would have something to really complain about
We feel and understand the pain of those impacted financially and personally by this terrible political decision to appease society’s soft underbelly. Financial ruin, family breakdown and depression result when such courses of action are taken without concern to the damage inflicted.
Queensland cattle producers suffered similarly from the action fostered by AgForce and implemented by the Queensland Government to tackle bovine Johne’s disease in 2012. Farms were lost and stress suffered by families unnecessarliy.
Unfortunately the single judge’s decision will be tested in higher courts and so it should be. It is a significant precedent impacting the powers of ministers in performing their duties. As it was explained to me, it needs to be shown Ludwig intended to damage producers when he issued the orders. Compensation must be paid as it must to the 258 cattle producers quarantined for being “suspect” BJD. However, our laws must equally be correctly stated.
I suggest a compensation plan be agreed and funded by a special levy placed on all Australian cattle producers to be administered by the Australian Government. The legal case can then be challenged through to the High Court if necessary without the question of compensation to damaged cattle producers hanging on the decision.
Australian Cattle Industry Council
Could Ludwig and Gillard face criminal charges and if so why are they not being charged?
Ludwig must be prosecuted for his incompetence, this would then show all Ministers they must at all times seek proper legal advice when making decisions with such drastic ramifications.
It may also lead to Ministers recruiting more experienced staffers and advisors because quite frankly many advisors, in particular, have no idea of the real world in which society operates.
Alan Schmidt is correct, increasingly Ministerial decisions are based on backside covering instead of good commercial results when it comes to business.
The export ban cost me my farm over $100000 Weaner calves
Where bring $900 HD over night could not find a market over $375 Midfield at Warrmambool could purchase cattle at under $1 per kg to fill the same market The south was a flood with northern cheep meat Cow market crashed. And mutton followed I sold my farm I was spiral down the drain . We rallied in Canberra but not a change in policy just laughing at the stupid farmer. I was broke and no help from government
This was a good decision by the courts. Government interferes far to much in the commercial processes of agriculture. Live exports are but one example of this interference. The Australian cattle industry is one of the lowest cost producers in the world to the farm gate. From there on the Government ensures through unnecessary legislation that they are then one of the most expensive. Most legislation around livestock movements and exports are designed to protect Federal and state ministers and do nothing to assist the industry.