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23 July, 2020

Federal Government will not appeal against Brett Cattle live export ruling

The Federal Government on Wednesday night announced it will not appeal the Federal Court decision declaring the 2011 live cattle export suspension to Indonesia illegal.


Attorney General Christian Porter said the June 29 decision in Brett Cattle Company Pty Ltd v Minister for Agriculture raised important issues of legal principle, but these were far outweighed by the suffering inflicted on the Northern cattle industry under the live export ban.

“As the Prime Minister has said, live cattle exporters were dealt with egregiously by the Gillard Government” Mr Porter said.

“This matter has been ongoing since 2014, and the Coalition Government is pleased those impacted by the ban can finally have the issue brought to an end.”

Federal Court Justice Steven Rares’ June ruling effectively brought to an end six years of review before the Court, and an agonizing 18 month wait by the plaintiff for it's final decision.

In 2014, the Northern Territory-based Brett Cattle Company led a class action against then Agriculture Minister Senator Joe Ludwig, after Mr Ludwig had signed a six month suspension of the live cattle trade to Indonesia on 7 June 2011. Then, Mr Ludwig had told cattle industry members they had lost their licence to operate following an ABC Four Corners report which showed footage of Australian cattle slaughtered inhumanely in Indonesian abattoirs.

Brett Cattle Company claimed it had lost the opportunity to sell about 2 776 head of cattle during the ban and suffered losses of $2.5 million. To date 30 parties have joined the class action, calling for up to $600 million in compensation.

In June, Justice Rares said the order Ludwig made on 7 June 2011 was invalid because it failed to include any exemptions for exporters who had already established a closed loop system.

“Such a total prohibition was capricious and unreasonable and made the ban order invalid” Justice Rares said.

Rares said Ludwig had knowledge that Australia had exported more than 500 000 live cattle to Indonesia the year before, worth about $400 million, and that there were supply chains in Indonesia with a closed loop system compliant with international welfare codes, plus many that could be readily adjusted to have one. 

"The Minister made the ban order shutting his eyes to the risk that it might be invalid and to the damage that it was calculated to cause persons in the position of Brett Cattle" Justice Rares said.

"The Minister was recklessly indifferent to his powers under the Export Control Act 1982 to make a ban order in absolutely prohibitory terms, without providing any power of exception.” 

On Wednesday night, National Farmers Federation President Fiona Simson thanked Prime Minister Scott Morrison's Government for declining to appeal Justice Rares' decision.

"This evening, the Government has made unequivocal its appreciation of the pain and injustice that was inflicted on Northern Australia by the Government of the day and it’s wish to see justice done" Ms Simson said.

“It sends a clear message, that such reckless and ultimately, illegal actions by any Government, can never be allowed to happen again."

Ms Simson flagged the Government's decision a landmark win for the Australian Farmers' Fighting Fund. 

"The class action supported by the AFFF spanned nine years and took a significant emotional and financial toll on all involved" Ms Simson said. 

“Tonight, those who were directly and indirectly hurt by the 2011 live export ban have been vindicated. Tonight marks a new beginning.”

National Senate Leader Bridget McKenzie similarly praised the Federal Government's "common sense decision" not to appeal the Federal Court ruling. 

"“A very reckless Labor government banned the live cattle trade overnight with no consultation, and we saw family farms and regional communities severely impacted for many, many years, not just economically but socially" Ms McKenzie said.

"It was The National Party in 2011 who really fought the Labor Party’s decision which decimated this important billion-dollar industry.

"Live Export is not just a northern industry but a national one, and we must ensure its ongoing security.”























 “This matter has been ongoing since 2014.

“While the decision in Brett Cattle Company Pty Ltd v Minister for Agriculture raises important issues of legal principle, they are far outweighed by the very real pain and hurt that the live export ban inflicted on our cattle industry” Mr Porter said.

However Mr Porter said the Government would press its view of the relevant legal principles if an appropriate case arose in the future.

“The government is pleased those impacted by the live cattle ban can finally have the issue brought to an end” Mr Porter said, “However it disagrees with some of the principles as they have been applied by the court.”

“The Court’s reasoning in this matter represents a departure from existing legal principles governing both the validity of delegated legislation and the tort of misfeasance in public office.”

National Farmers Federation Fiona Simson said the Government’s decision a landmark win for the Australian Farmers’ Fighting Fund and the Northern Territory Cattlemen’s Association in a statement on Wednesday night.

“By declining to appeal Justice Rares’ decision, the Government has made unequivocal its appreciation of the pain and injustice that was inflicted on Northern Australia by the Government of the day and its wish to see justice done.” Ms Simson said.

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