Federal Government urged not to appeal live export ban ruling

Affected farmers have urged the Federal Government not to appeal a Federal Court ruling that found the 2011 live export ban unlawful.

Brett Cattle Co. owner Hamish Brett, with his parents, and former NT Cattlemen's Association CEO Tracey Hayes address the media following the landmark Federal Court ruling last week. Picture Katrina Bridgeford.

FARMERS have urged the Federal Government to rule out appealing a Federal Court judgment that the 2011 live export ban was unlawful.

Cattle exporters were rejoicing last week after the landmark decision was handed down, ruling former Labor agriculture minister Joe Ludwig’s ban “capricious and unreasonable” and ordering the current government to pay substantial damages.

While affected farmers, including lead plaintiff Brett Cattle Co, are hoping it brings the nine-year saga to an end, the Government has yet to confirm if it would accept the judgment or fight it.

It’s understood the Government is considering an appeal, concerned about the precedent the case could set for challenging government decisions; there has been some suggestion, however, that farmers should still also be compensated.

National Farmers’ Federation president Fiona Simson has reiterated the plea of farmers’ to let the decision stand.

“It was clearly unforgivable, and not only was it unforgivable, it was illegal,” Ms Simson said.

“We need to move on, the people of Northern Australia want to move on.

“This is not of (the government’s) making, but they’re the ones who have to deal with it and right now more than ever we need faith in good government and good governance.”

Queensland Nationals senator Matthew Canavan and NSW Nationals senator Perin Davey have urged the Government not to appeal.

“There is a strong feeling among National Party members that it (the court ruling) is the right decision, because it was the wrong decision to shut down a whole industry,” Ms Davey said.

“It was an incredible decision taken so quickly, and with such a lack of consultation, that it was really hard to justify.”

Ms Davey added yesterday: “The important thing for me is that the many people whose businesses were devastated by the decision to ban an industry without consultation or advice receive due compensation.”

Labor agriculture spokesman Joel Fitzgibbon – who took over the ag portfolio in 2013 – said the ban was “deeply regrettable”.

“The court found the government of the day made a mistake, and I absolutely accept that,” he said.

In delivering his ruling, Justice Steven Rares found Mr Ludwig had acted “recklessly indifferent” to his power. It was the first time a case of misfeasance had been proved against a federal minister, and has left the Government considering the implications. 

Agriculture Minister David Littleproud called the 2011 decision “abhorrent” but has yet to confirm what the Government will do next.

Senior lecturer of administrative law at University of NSW Janina Boughey believed there was a “good chance” the Government would appeal.

Dr Boughey said though a finding of misfeasance was very rare, the case arguably indicated a greater willingness for the court to find the threshold of “unreasonableness” had been met.

“The court found that the minister had acted beyond the scope of his authority because the total ban he imposed, without allowing for any exceptions, was disproportionate and unreasonable,” Dr Boughey said. 

“That might be seen as the court second-guessing the exercise of the discretionary power that parliament conferred on the minister.”

Dr Boughey said the case was also significant due to the awarding of damages, as courts were generally reluctant to order compensation due to government decisions as it was public money being spent.

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