Statement by the Australian Farmers’ Fighting Fund, Northern Territory Cattlemen’s Association, Brett Cattle Company & National Farmers’ Federation.
Justice has been served today for farmers and supply chain businesses whose livelihoods were decimated when the Federal Government recklessly shut down the trade of live cattle to Indonesia in 2011.
In the Federal Court, Justice Steven Rares found former Agriculture Minister, Senator Joe Ludwig acting on behalf of the Federal Government, had committed the offence of ‘misfeasance in public office’ in his decision making. Justice Rares said the Brett Cattle Company was entitled to ‘substantial damages’ and the Commonwealth must pay court costs.
Justice Rares was critical in his summary of how the approach of the then Minister and his Department was not fully considered by the then Government.
Justice Rares said the outcome was: “recklessly indifferent as to the availability of his power to make the Second Control Order in its absolutely prohibitory terms without providing any power of exception and as to the injury which the order, when effectual, was calculated to produce.”
The result is a monumental win for lead applicants: the Brett Cattle Company of Waterloo, the adjoining parties and the Australian Farmers’ Fighting Fund, the support of which made the case possible.
The decision comes exactly nine years to the day from the issuing of the first export control order by the then Gillard Government and following 18 months of deliberation by Justice Rares.
The case looked at the appropriateness of the Government’s decision making. The matter was a not a contemplation of the merits of the live export industry.
“Today justice has been finally served,” Class action facilitator and former Northern Territory Cattlemen’s Association Chief Executive Tracey Hayes said.
“The decision by Justice Rares represents a win in the interests of process, good governance and a fair go and is recognition of the devastatingly poor government decision that sent shockwaves across the Australian agriculture sector.”
“It puts all Governments on notice and sets a pathway that will serve to ensure a higher standard of Government decision making into the future.
“Most importantly it brings closure to a very challenging chapter for Emily, Colin, Alison and Hamish Brett of the Brett Cattle Company and the many, many other northern Australian farmers and businesses whose lives and livelihoods were thrown into chaos as a result of the shutdown.”
The decision found that the Minister followed the processes available to him and that he heeded the advice provided to him by the Department.
“It is clear that something happened within the processes of the then Government on the evening of 7 June 2011, that saw the Minister’s preferred and recommended course of action disregarded,” Ms Hayes said.
“The shutdown came at the very beginning of the exporting season, when there were cattle in yards, on farms, on trucks, in feedlots and on ships destined for South East Asia.
“At the very time when the sale of these cattle was to pay down debt and cover costs to operate. The decision impacted transport companies, vets, livestock agents and associated careers, contractors and local businesses – effectively bringing their businesses to a standstill.”
Ms Hayes acknowledged the courage of the Brett family.
“Emily, Emily’s late husband Dougal, Colin, Alison, Hamish and their extended family, have succeeded in not only righting the injustices inflicted on their own family and business, but those suffered by many other northern Australian families.
“It has been a decade of pain for the Bretts’ and others like them.”
In reference to the prospect of the Government appealing the decision, Ms Hayes said this must be the end of this matter.
“The many families, businesses and communities that have been hurt need closure.
“In these tough economic times, it would be irresponsible for the Government to direct yet more taxpayer’s money to appealing this decision. Enough is enough.”
Ms Hayes said Australian producers and the live export industry was committed to upholding world leading standards in animal husbandry.
“Australia is the only country to regulate animal welfare after leaving Australia.
“Our industry is dedicated to constant and continual improvement and holding those who do the wrong thing, to account.”
NFF President Fiona Simson said today’s result would not have been possible without the support Australian Farmers Fighting Fund.
“Since 1985, farmers have been investing in the AFFF to take the fight up on their behalf,” Ms Simson said.
“The AFFF intervenes in cases that have the potential to curtail the continued vibrancy of our farm sector, regional communities and Australia as a whole – this was one such case.
“Today highlights the great strength agriculture and regional Australia has when it unites for a common cause.
“It’s a reminder to farmers of the importance of keeping in touch with their representative bodies like the Northern Territory Cattlemen’s Association and the National Farmers’ Federation and to continuing to invest in the AFFF.
“This has been a monumental battle and it won’t be the last agriculture faces.
“There are and will be plenty more battles to be fought to protect the livelihoods and well being of future generations.
“A ‘team agriculture’ approach will undoubtedly yield the best results.”
The process to determine compensation will begin later in the month.
Brett Cattle Company Pty Ltd v Senator the Honourable Joe Ludwig, Former Minister for Agriculture, Forestry and Fisheries and Anor
• An ABC 4Corners program on May 30, 2011 featured animal welfare abuses in some Indonesian abattoirs processing Australian cattle.
• In June 2011, acting on behalf of the Federal Government, former Agriculture Minister Senator Joe Ludwig, banned the live cattle trade to Indonesia and an entire industry was brought to a standstill.
• This decision shut down businesses overnight.
• Livestock were left stranded in loading yards while owners scrambled to find food, shelter and somewhere else for them to go.
• Farming families were left without an income. Supply chain businesses were put to the wall. International trade relationships damaged.
• The effect of the ban was shattering on many Australian cattle producers and businesses servicing the live export industry. Years later many of these businesses are still recovering.
• Despite best endeavours by the northern cattle industry to settle the matter out of court from 2011, in 2014 an action was filed in the Federal Court, with the backing of the Australian Farmers’ Fighting Fund.
• The action sought compensation for the financial losses suffered.
• The applicants, led by the Brett Cattle Company of Waterloo, argued that the ban constituted “misfeasance in public office”.
• In July 2017 the Court heard the case in a massive hearing spanning 1 week. This was followed by another week-long hearing in December 2018.
• As at 2 June 2020, the number of litigants to the class action is finalised. It is envisaged that the final list will include farmers and others in the supply chain (such as stock and station agents, farm supply business, truck businesses, vets and more). There are likely hundreds of litigants who can show cause that they should be compensated.
• Following today’s finding, the amount of compensation and the final number and type of litigants still needs to be negotiated and determined.
• It is likely that the amount of compensation to be paid will be in the hundreds of millions of dollars.
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