National Farmers' Federation

‘Please don’t appeal’ – Farmers’ strong message for Government on next steps in live export class action

By NFF President Fiona Simson

Whilst no doubt a landmark judgment, the agricultural sector is echoing the Brett Cattle Company’s calls for no appeal by this Government in the Live Export Trade Class Action. The sector desperately wants closure after 9 years of pain.

On 2 June, Justice Steven Rares of the Federal Court held that the former Minister for Agriculture, Joe Ludwig, committed the tort of misfeasance in public office when making the Ban Order prohibiting the live export of cattle to Indonesia on the 7 June 2011.  The Ban Order was made following the public outcry after video footage of inhumane treatment of Australian cattle in Indonesia was broadcast on ABC’s Four Corners program in May 2011.  Everyone, including farmers, found the footage abhorrent.

Last Tuesday, Justice Rares said the Ban Order was illegal.  Crucially he also found that the Minister would have acted lawfully if he had simply approved an exceptions order for specific facilities in Indonesia that at that time could meet international animal welfare standards.  This certainly makes sense to me and every farmer can see the sense in it.

Now, we are all on edge, waiting to see if the Government will lodge an appeal to the Full Federal Court. 

This of course will place the judgement further in the national spotlight.  The Government seems not to realise that the circumstances of this decision are truly novel. For those with long memories, the decision was described by Tony Abbott when he was Prime Minister as perhaps the worst decision that any Australian government had ever made.

We understand that the claim of misfeasance in public office is notoriously difficult to prove and in this case there was a unique set of circumstances.  You need to prove that the decision maker intentionally abused or misused their power, or as it happened here, made a decision beyond their power and with reckless indifference to it. We always agreed that is a very high bar.

As we emerge from under the COVID cloud, I’m sure lots of small businesses like pubs, restaurants and cafes right across the country empathise with what the ban must have felt like all those years ago.  But it’s different for the farmers and their suppliers all across Northern Australia, their ban was a knee jerk reaction to a single TV program and importantly could have been avoided.    

My concern now is that history may repeat itself and we see yet another knee jerk reaction.  The Government needs to be careful here, we understand that, perhaps more than most.  

We have spent nine years trying to explain it.  To lodge an appeal when it has taken nine years to reach this outcome would slap the affected industry in the face and exacerbate the ongoing pain spread across the north of our country.  

No one wants an appeal, except perhaps the Government’s lawyers.  We just want closure and to move on.  Any successful appeal requires the Government to establish an ‘error of law’. The facts found by the judge in our case are not in dispute. We believe the decision is a well-reasoned one in which the Judge carefully considered all the evidence and the law for 18 months and made his decision. That 18 months gave the government ample time to consider the potential ramifications of the outcome of this case and the merits of reaching a settlement. Yet there were no settlement discussions.

Farmers and the industry will be further irritated should this judgement be appealed. Those impacted have now established the right to fair compensation and they believe the judgment is fair. If this case is truly one that has set such a significant legal precedent, there is plenty of time to test if that plays out. Any new cases of misfeasance that may arise in the future will no doubt go through the wringer like ours did. 

We think this judgment highlights the requirement for process so that Ministers can make considered decisions.  Not decisions where they are aware of the risk that their decision may be beyond the scope of their powers, and where they know they will cause significant injury.

Farmers have said to me that they think this really is just common sense, so the true flow on effect from this judgment does no more than ensure that government decision-making meets the standard that the general Australian public expects.

It is time now for industry to be given the compensation that is due and for this whole matter to have closure. It is time for the farmers who suffered such a significant setback all those years ago to finally have closure, move ahead and get on with their lives.

In my view to there is a bigger risk here and that it is the potentially powerful political fallout from affected people in rural and regional Australia and in fact all Australians.  It will impact our faith in this Government’s decision-making process to right a wrong and further risk offending one of Australia’s important trading partners, Indonesia, who were so deeply bruised by the ban.  This is still a live issue.

The former Minister and the government have 21 days from the judge’s decision to appeal.

We humbly say – ‘please don’t.’

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