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Class Action


Emily Brett has only one regret about the epic court victory over the cattle export ban – that her husband Dougal didn’t live to see the triumph.

Dougal was killed in a helicopter crash near the boundary of his Waterloo Station on the Northern Territory- Western Australia border in 2015. A year earlier, he had joined 300 other cattle station owners in a $600 million class action against the Federal Government’s 2011 live export prohibition. “I can’t explain to you how sad I am that my husband didn’t live to see this victory,” says Emily.

“We went through this together – the terrible financial hardship and then the decision to go to court. “I wish I could just tell him: We did it!” Emily thanked the National Farmers Federation and the NT Cattlemen’s Association for their support.

The Government is now likely to pay millions of dollars in compensation to the Brett Cattle Company and other Territory pastoralists financially crippled by the six-month ban. “We suffered immense financial hardship because of the ban – so much stress, it was overwhelming at times,” Emily says. “But we knew that what had happened was wrong.”

Then Federal agriculture minister Joe Ludwig signed a six-month suspension of the live cattle trade to Indonesia on 7 June, 2011 following an ABC Four Corners report showing inhumane treatment of cattle in Indonesian abattoirs. The agriculture department said the ban would last until a regulatory framework was set up for a “closed loop” system to ensure minimum international animal welfare standards.

But Federal Court justice Steven Rares ruled in June that the order was invalid because it failed to include any exemptions for exporters who had already established a closed loop system. “Such a total prohibition was capricious and unreasonable,” he said. Justice Rares said Australia had exported more than 500,000 live cattle worth about $400 million to Indonesia the year before the ban.

He said the minister had been told by the live export industry that there were supply chains in Indonesia that had a closed loop system with animal welfare standards compliant with the international code or that could be readily adjusted to have one. But Senator Ludwig made no attempt to explore negotiating a solution with the Indonesian government before imposing the ban order – and did not talk to his Indonesian counterpart until after the order was made.

He had no legal advice that he could lawfully make the order in such form but had sought legal advice about the government’s potential exposure to compensation claims if he made a temporary ban. “Yet, with that knowledge the minister plunged ahead regardless,” Justice Rares said. “He made the ban order shutting his eyes to the risk that it might be invalid and to the damage that it was calculated to cause persons in the position of Brett Cattle.”

Justice Rares said Senator Ludwig was “recklessly indifferent” to his powers under the Export Control Act 1982 to make a ban order in “absolutely prohibitory terms without providing any power of exception” and also the financial impact of such an order. “Accordingly, the minister committed misfeasance in public office when he made the ban order.”

Justice Rares said that instead of a ban order, the minister should have made another control order, similar to that made on 2 June 2011, which allowed him to make exceptions for exporters working in closed loop systems if he was satisfied animal welfare standards had been met. Dougal Brett’s dad Colin said common sense had prevailed.

“I don’t think any industry in Australia should ever be closed down overnight without government speaking to industry and giving them a chance to defend themselves. “From my own family’s point of view, it’s not the money we were concerned about as much as the government not being able to do this ever again.” TQ