Ban Order by Government on live cattle exports in 2011 found to be invalid
On 2 June, the Federal Court found that the Commonwealth Government was liable to pay compensation to Brett Cattle Company Pty Ltd and others for the unlawful Ban Order placed on live cattle exports to Indonesia in 2011.
The Ban Order was made under the Export Control Act 1982 (Cth) which gave the Minister extensive powers to prohibit export of livestock absolutely or to particular places or on conditions.
Who were the applicants and what was the loss suffered?
What was the claim?
To prove this allegation, Brett Cattle Company had to establish both that the Ban Order was invalid and that if it was, the Minister had acted recklessly in making it. The Commonwealth accepted that it would meet any damages or costs for which the Minister was found liable.
The History of Live Animal Export Issues
In 2006, 60 Minutes broadcast footage depicting mistreatment of cattle in Egypt. That generated public debate which culminated in one of the Minister’s predecessors using his power under the Export Control Act to prohibit the export of livestock to Egypt. The Australian and Egyptian Governments then negotiated and reached a solution which involved a new feedlot and abattoir facility being built at an Egyptian port to operate as a “closed loop system”. Such a system requires each animal to be tagged before export to ensure that it can be traced and stays within the system at all times up to its slaughter. The tags are machine readable and their purpose is to guard against the risk of cattle being diverted out of the closed loop system and thus subjected to inhumane treatment of cattle. The Egyptian market imported only about 30,000 head, therefore was much smaller than the Indonesian market (which had about 80 to 90 feedlots and over 350 abattoir facilities).
Both Australia and Indonesia were members of the World Organisation for Animal Health “OIE”. The OIE had developed a code (the OIE Code) that set out guidelines of minimum standards for the humane and appropriate treatment of animals, including during transport, when in feedlots and up to and including the moment of slaughter.
In the evidence, it was shown that the Minister knew that Australia supplied 100% of Indonesia’s live export needs.The evidence also showed that the Minister had received notice that the Indonesia’s Ambassador had apologised for the mistreatment of the animals and the diplomats and Indonesian Department of Agriculture had said that they were keen to work with Australia to resolve the issue. There was no evidence to show that prior to making of the Ban Order, the Minister made any contact with his Indonesian counterpart or otherwise attempted to “work with” that nation on a resolution.
The Court’s Decision
- it would prohibit any exports to Indonesia without any exception in an industry that in 2010 had exported over 500,000 live cattle worth about $400 million;
- the industry representatives had told him that there were supply chains in Indonesia that had, or readily could be, adjusted to have a “closed loop system” with animal welfare standards that were at least compliant with the OIE Code;
- he had made no attempt to explore an appropriate solution with the Indonesian Government and that an order prohibiting all exports would cause that Government concern…”
“I have found that the Minister saw and read the various Departmental minutes. In addition, he had also received information about the situation in Indonesia relating to actual and potential closed loop supply chains that had, or readily could have, animal welfare standards at least consistent with the OIE Code.”
“A regulatory measure, such as the Ban Order, must be a proportionate response to meet the situation that it is intended to address. The law requires a decision-maker, when using a wide power, like the Minister’s powers under the Export Control Act, not to make unnecessary limitations on the common law right of persons to carry on their lawful business. One test to ascertain if a provision is unnecessary, is to consider if there is an obvious and compelling alternative.”