Nationals senators call on Porter not to appeal court decision on ‘illegal’ live export ban

Nationals senators demand Christian Porter rule out an appeal against the Federal Court’s decision to declare the Gillard government’s live cattle exports ban illegal.

Nationals Senate leader Bridget McKenzie and deputy leader Matthew Canavan. Picture: AAP

The Nationals’ Senate team is demanding that Attorney-General Christian Porter rule out an ­appeal against the Federal Court’s decision finding the Gillard government’s live cattle ­exports ban illegal.

In a letter obtained by The Australian, Nationals senators Bridget McKenzie, Susan McDonald, Perrin Davey, Matt Canavan and Country Liberal Sam McMahon tell Mr Porter the commonwealth would fail to be a “model litigant” if an appeal were pursued.

The Nationals senators say any appeal is not guaranteed of success and farmers have already been through enough.

The Federal Court last month found former Labor agriculture minister Joe Ludwig committed misfeasance in public office by introducing­ the temporary cattle ban in 2011.

Mr Porter has signalled he would decide on whether to pursue an appeal against the ruling by the end of this month, amid concerns the ruling could restrict ministerial decision-­making powers.

In their letter, the Nationals senators say they see limited grounds for appeal and it would hurt farmers who have battled against the live animal export ban for nearly 10 years. “We fail to see successful legal grounds for an appeal. The commonwealth should act as a ‘model litigant’ and not pursue appeals where there are only limited chances of success,” the letter states.

“We understand your decision must primarily be based on the legal grounds … grounds that we do not think establish the case for an appeal.

“We would ask that you also take into account the hurt and pain a previous commonwealth government’s decision inflicted on the hard-working men and women of our live cattle industry.

“They have fought long and hard for their day in court. We ­applaud their patience and sacrifice and ask that justice for them is delayed no longer.”

Scott Morrison and Mr Porter have said farmers could still be compensated over the ­Gillard government’s export ban, even if an appeal overturned parts of the judgment.

Mr Porter has still not decided whether he will appeal the judgement over concerns the decision introduces a “proportionality test” that puts new limits on ministers’ powers.

Liberal stalwarts Ian McLachlan and Andrew Robb — a former defence minister and trade minister respectively — wrote in The Australian on Monday that any challenge to the limits on ministerial powers would leave cattlemen in constant fear that another live exports ban could be put in place by a future government.

Nationals senators have previously backed a Senate motion calling on the government to rule out an appeal over the live cattle ban decision.

The country party’s upper house team have become more vocal in recent months, and more willing to challenge government stances on issues such as live exports and backing Labor’s push to keep a second federal parliament seat for the Northern Territory.

In the letter, the five Nationals senators argue at length that Federal Court justice Steven Rares’s decision last month does not set a new precedent, and several similar cases show this.

“For the third test, Justice Rares applied a test of proportionality to the decision made. We understand this has caused some concern within government as there is a view that this ‘proportionality’ test sets a new precedent compared to a ‘reasonableness’ test that had been previously applied.

“We do not support this conclusion, given that proportionality tests have been used in many recent cases to assess reasonableness … (past cases) clearly outlined that proportionality could be used to establish reasonableness. The government’s concern seems to be that Justice Rares, by using a test of proportionality, has not applied the standard misfeasance of public office test … However, previous cases have explicitly established a link between (the reasonableness) test and a test of proportionality.”