Dean Smith (WA, Liberal Party) Share this | Hansard source

I rise to highlight the recent judgement in the Federal Court in the matter of Brett Cattle Company Pty Ltd v Minister for Agriculture. With much of the media's attention on other pressing issues facing Australia at this time, it is nonetheless very, very important that the reckless and overt maladministration of the former Labor government is placed on public record and given opportunity to be amplified.

In 2011, during the Gillard government, the former Minister for Agriculture, Fisheries and Forestry Senator the Hon. Joe Ludwig implemented what's called the Export Control (Export of Live-stock to the Republic of Indonesia) Order 2011, better known as the live export ban order. While many at the time, including me, felt the live export ban was a terrible decision that would inflict significant economic harm upon farmers across northern Australia and damage Australia's relationship with Indonesia, it has taken many years and a case in the Federal Court to fully expose the capricious actions of the Labor government during this time.

The Federal Court held—and I'm now quoting from the judgement:

48 When he—

Minister Ludwig—

made the Ban Order, the Minister knew that:

So what does all this mean? It means simply that the minister, then the Hon. Joe Ludwig, a senator in this place, knew the ban would cause economic harm. The minister knew there were already supply chains meeting international animal welfare standards; the minister failed to discuss the issue with the Indonesian government; the minister knew it would cause significant damage to Australia's relationship with Indonesia; the minister acted without advice from the department or without relevant legal advice; and, importantly, the court found that the minister knew there was a real risk that his order might be invalid.

And to confuse the decision-making process even further, the minister, despite receiving several draft cabinet minutes to fully consider the issue, including obvious international implications—and, again, I'm quoting from the judgement:

… put no written submission or other document before Cabinet at its meeting on 6 June 2011.

This was a clear and fundamental breakdown of the cabinet process that harmed businesses, harmed families and harmed Australia's international trading reputation.

In relation to the specifics of the compensation claim, in order for the plaintiff to be successful Brett Cattle Pty Ltd needed to prove that the ban order was invalid and that the minister acted recklessly in making it. Despite this very high bar to be met, the court held—and, again, I'm quoting from the judgement:

50 I am comfortably satisfied, based on the whole of the evidence, that the Minister was recklessly indifferent as to first, the availability of his power to make the Ban Order in its absolutely prohibitory terms without providing any power of exception and, secondly, as to the injury which the order, when effectual, was calculated to produce. Accordingly, the Minister committed misfeasance in public office when he made the Ban Order on 7 June 2011.

Damning! Damning! Damning!

So let's be crystal clear. The Gillard government acted recklessly, damaged Australia's relationship with its closest trading partner and financially crippled an industry worth around a billion dollars every year and which supports 10,000 jobs, located mainly in northern Australia in places like my home state of Western Australia and in the Northern Territory and in Queensland. Interestingly, and in an important reminder for regulators, the court stated in its summary:

45 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 … 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.

The Gillard government's response was clearly not proportionate and did not consider any obvious and compelling alternatives. As a result, Brett Cattle—again, quoting from the judgement:

53 Accordingly, Brett Cattle is entitled to substantial damages—

that is, compensation—

and … the Commonwealth must pay its costs of the proceeding.

I welcome the decision, and I hope that the Labor Party learns from its misfeasance in public office to prevent the taxpayer from having to pay the cost of its terrible decisions like this ever, ever again.

One final note: I congratulate those people who have endured for many, many years in pursuing this, and I'd like to publicly acknowledge the work and the tenacity of a former fellow Western Australian senator, Senator Chris Back, who was a great champion for pastoralists across the far north of Western Australia.