Retiring judge lashes long-running live export case
Cattle farmers suing the federal government over Labor’s 2011 live export ban claim Indonesia “retaliated” against Australia for the ban, and they should receive more compensation from taxpayers as a result.
The Federal Court in 2020 ruled 215 graziers were entitled to compensation for about 88,000 cattle that would have been exported without the ban, but lawyers for the cattlemen said it should be 800,000.
A long-running legal battle over live exports to Indonesia looks set to continue for another year. Glenn Campbell
In financial terms, that’s a $1.8 billion difference between the Albanese government’s expired settlement offer of $215 million in damages, and graziers’ claims for $2 billion in damages and legal fees.
Justice Steven Rares – who has overseen the case since it was launched in 2014 – in July described the 800,000 claim as “cloud-cuckoo-land” and “absurd” but allowed lawyers to make submissions on the matter.
But after reading them he seemed even less impressed than before, claiming the issue at the heart of the discrepancy – the claim Indonesia would have allowed more cattle to be imported had the ban never been imposed – wasn’t even something the court could make a judgment on.
“Courts do not adjudicate on the acts of sovereign governments, and you’re asking me to adjudicate ... why the Indonesian government acted as it did within its lawful powers,” Justice Rares said in a hearing last week.
“How can it be said this court would say that the Indonesian government acted the way it did because of Australia’s decision, and would have acted differently had that decision been different?
“I just don’t know how a court can make a decision about what a sovereign government acting lawfully – and there is no suggestion it wasn’t acting lawfully – where it has policy choices, would have acted differently.”
Whether the cattle farmers’ arguments can even be determined by the Federal Court will be a question for another judge, however, with Justice Rares about to hit the compulsory retirement age of 70.
He expressed regret at being unable to see the matter to conclusion, and told the parties another “hapless victim” (judge) was yet to be appointed.
The long-running legal stoush began in 2014 when the Brett Cattle Company began legal proceedings on behalf of affected farmers. In 2020, Justice Rares found in Brett Cattle’s favour and ordered $3 million in damages.
At the time he described the ban approved by then-agriculture minister Joe Ludwig as unlawful, “capricious, irrational and unreasonable”.
It had been expected the Morrison government would appeal against the legally controversial decision to the full bench of the Federal Court, but pressure from the Nationals forced a backdown.
Referencing the long-running dispute in another matter in August, Justice Rares agreed that his judgment was “pretty controversial among the academics and commentators” but “the National Party Court of Appeal in the Parliament decided that there wouldn’t be an appeal to test all that.”
The political comments were an unusual intervention from the bench, which usually refrains from political commentary.
Officials from the Department of Agriculture are on Tuesday expected to be grilled by Coalition senators about the case when appear before Senate estimates.
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