- In May 2011, ABC Four Corners aired an episode on the treatment and slaughter of Australian cattle that was exported to Asia.
- Shortly after, Minister for Agriculture Joe Ludwig ordered that Australian cattle could not be exported to various Indonesian abattoirs that had been engaging in inhumane practices, unless the abattoir satisfied the Minister that its practices met internationally recognised animal welfare standards (“First Order”).
- Political pressure led the Minister making a second order that banned the export of livestock to Indonesia for a period of 6 months (“the Ban”). There were no exceptions to the Ban.
- The First Order and the Ban were both enacted under delegated legislation.
- Brett Cattle Company Pty Ltd (“BCC”) was a cattle exporter and was affected by the Ban. BCC claimed it lost the opportunity to sell more 2,700 head of cattle into Indonesia in 2011 because of the Ban, and suffered losses of $2.4 million.
- BCC was the representative in a class action against the Minister. BCC argued that the Ban was invalid and that the Minister committed the tort of misfeasance in public office.
- Were the First Order and Ban valid?
- The Court was required to consider whether the ban was unlawful or beyond the power of the Minister.
- Rares J applied a 3-step test to determine the proportionality of the ban order, in order to assess whether the order was a valid exercise of power: whether the orders were suitable, necessary and balanced.
- The Ban was “suitable” as an interim step towards Australia developing a system under which Australian cattle could be exported to Indonesia in an appropriate and humane manner.
- However, an absolute prohibition was not necessary. The Minister knew the Ban would have a significant effect on the industry. There was no “exceptions power” which would allow the Minister to make an exception if needed.
- The Minister’s failure to include such an exceptions power meant the ban was found to be “capricious and unreasonable“. The court found that a reasonable and proportionate response would have been an exceptions power which allowed certain operators to obtain approvals and continue exporting cattle to Indonesia.
- Finally, the Court held that there was no rational or reasonable justification for the First Order, and the prohibition imposed on exporters who were able to meet relevant codes was an “undue and impermissible burden on the common law right to carry on business“. It was imbalanced.
- Rares J held that the Ban was invalid and that the Minister committed the tort of misfeasance in public office. BCC was entitled to compensatory damages from the Commonwealth.
The full text is available here:
Save this case