The 2011 live export ban caused pain, and the Government faces more

The live export court decision is a major challenge for the Federal Government, writes Natalie Kotsios.

Shipping out: A consignment of cattle ready to leave port as part of Australia’s live export trade in 2018. Picture: Keri Megelus

THE timing was remarkable: nine long years almost to the day, Northern Australia’s cattle exporters were finally vindicated over a snap decision that changed their industry.

June 2, 2011, then agriculture minister Joe Ludwig made the first order restricting live cattle exports to Indonesia, after shocking evidence of animal cruelty in Indonesian abattoirs aired on ABC’s 4 Corners.

June 7, 2011, Mr Ludwig signed a blanket ban on all live exports to Indonesia for six months, crippling a $1.4 billion trade overnight.

What happened in those intervening days would be the subject of a protracted Federal Court battle that, on June 2, 2020, confirmed what farmers felt all along: the Gillard Government’s ban was unlawful.

Justice Steven Rares found Mr Ludwig had acted “recklessly indifferent” to his power, committing misfeasance in public office — the first time such a case had been successfully prosecuted against a federal minister.

Tempting as it is to celebrate the landmark victory, farmers can’t breathe easy yet.

The Federal Government has yet to confirm if it will appeal. Reports emerged yesterday that it is considering an appeal, though the prospect of still compensating farmers was also flagged.

The Government has two sides to consider: the legal one, and the political one, and they are definitely in conflict.

University of NSW senior lecturer in administrative law Janina Boughey believes there’s a good chance the Government will appeal.

Findings of misfeasance in public office are incredibly rare; the onus is all on the plaintiff to prove the behaviour, and the bar is very high.

That this case took six years to complete, including 18 months to consider the judgment alone, gives some indication of the complexities.

What’s new here, Dr Boughey said, is not so much the principles of law as the willingness of the court to find that bar had been met.

Add to that is the fact damages have been awarded.

Finding government actions unlawful is not uncommon, Dr Boughey says, but awarding compensation is.

Should the judgment stand, it could be tempting grounds for others to challenge the decisions of governments and ministers past, present and future.

Politically, it’s a nightmare.

Decision-makers will be shaking in their boots at the prospect — no matter how slim — of more litigation; while at the same time having to acknowledge the very real pain this caused.

So far, Agriculture Minister David Littleproud has chosen his words carefully.

But, no matter how much he sympathises with cattle producers or labels the ban “abhorrent”, he is still part of a government that needs to decide if it will drag the episode on.

Nationals members are agitating for the Government to accept the ruling.

This case goes to the very heart of their core constituency, at a time the faith of country people in the “country party” is hitting all-time lows.

To be part of a Coalition that is seen to inflict more harm on these farmers after close to a decade could be the last straw.

Of course, there is one more option to consider, beyond the legal and political: the moral one. The one that accepts this was wrong.

The one that says no, that sort of fly-by-night decision-making should never happen again.

This Government might not have been responsible for the ban, but it can be the one to restore a little much-needed faith in the institution of governance.

● Natalie Kotsios The Weekly Times national affairs reporter

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