2011 Live Export Ban ruled invalid - What every government decision maker should know about misfeasance in public office

On 2 June 2020, His Honour Justice Rares handed down the decision in Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 ruling that the Minister's decision to ban the live export of cattle to Indonesia in June 2011, in the aftermath of the Four Corners program, was invalid and his actions amounted to misfeasance in public office. Whilst the decision may be the subject of an appeal, there are a number of salient points that emerge from the decision that every government decision maker should take heed of.

The ban was effected via the Export Control (Export of Live-stock to the Republic of Indonesia) Order 2011 which prohibited the export of livestock to Indonesia for 6 months. This was described as the Second Control Order. His Honour Justice Rares was satisfied that the Second Control Order was invalid and turned his mind to whether the Minister had committed the tort of misfeasance in public office. Justice Rares stated that for the tort of misfeasance in public office to be established, a claimant must prove that the public officer abused or misused his or her office intentionally, that is by either intending to cause harm (the first limb) or knowingly acting in excess of his or her power (the second limb). In relation to the second limb, Justice Rares stated that the "preponderant view is that it is sufficient that he or she must also have known, or been recklessly indifferent to, the fact that the plaintiff or applicant was likely to suffer harm. The other view (which I am of opinion is incorrect) is that it is sufficient that there be only a foreseeable risk of harm" ([280)]. A useful discussion of the principles of misfeasance in public office can be found in paragraphs [269] to [284].

Some of the key findings by Justice Rares are as follows:

1.   the Second Control Order was invalid and therefore beyond the Minister's power so as to satisfy the first element of the tort of misfeasance in public office. He stated: "The total prohibition was not reasonably appropriate and adapted as a means of attaining the purpose of preventing the mistreatment of livestock exported to Indonesia. That is because it capriciously and irrationally prevented a substantial number of persons from continuing to carry on their lawful businesses where those businesses did not involve, or could have taken reasonably prompt steps to ensure that they did not involve, livestock being exposed to the risk of inhumane treatment in Indonesia" ([361)]. 

2.   that the Minister "acted recklessly as to, first, his power to make the Second Control Order in the terms that he used and, secondly, the fact that persons engaged in the live export trade to Indonesia, such as those in Brett Cattle’s and Elders’ position, would suffer harm unjustifiably" ([373]).

3. in terms of the Minister's state of mind as to his power (among other things), the Minister had "no written or oral advice from either the Department or a lawyer that it was lawful to make the Second Control Order in the absolute terms that it contained" ([375]). That is ([378]):

"the Minister exercised his power recklessly. He knew that there was a risk that the Second Control Order might be invalid and despite asking for advice on general questions, he did not ask for and, received no, advice that the actual control order he proposed to make would be lawful. He shut his eyes to what might be the answer and went ahead regardless: Banditt 224 CLR at 265–266 [2]–[3]".

4. he inferred that the Minister "deliberately took the risk, when making the Second Control Order, that it could be invalid, but he did not care whether it turned out to be so or not. He was quintessentially reckless in exercising his power when he made the Second Control Order" ([381]).

5.   in terms of the Minister's state of mind as to the likely harm, "the Minister knew of, or was recklessly indifferent to, the injury that a control order with a total prohibition on all livestock exports was calculated to produce on persons, such as Elders, who could have met his requirements immediately that would justify him making an exception: Mengel 185 CLR at 370–371" ([382]).

In summary, Justice Rares found that when the Minister made the Second Control Order he knew that ([392]):

"?     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 agreeing an appropriate solution with the Indonesian Government and that an order prohibiting all exports there would cause that Government concern;

?       he had no Departmental advice to make an order in a form that affected only exports to Indonesia;

?       he had no legal advice that he could make lawfully the, or any, order in such a form; and

?       there was a real risk that, if he made the order in the form he adopted, it might be invalid".

His Honour then stated ([393-395]):

"393. Yet, with that knowledge the Minister made the Second Control 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: Banditt 224 CLR at 265–266 [2]–[3]; see [277] above.

394. I am comfortably satisfied, based on the whole of the evidence, that the Minister was recklessly indifferent as to the availability of his power to make the Second Control Order in its absolutely prohibitory terms without providing any power of exception and as to the injury which the order, when effectual, was calculated to produce: Mengel 185 CLR at 370–371.

395. Accordingly, the Minister committed misfeasance in public office when he made the Second Control Order on 7 June 2011."

One interesting side note is that the decision to make the Second Control Order followed a Cabinet meeting and the deliberations of Cabinet were not able to be disclosed and nor could an adverse inference be drawn against the Minister for the failure to give evidence in terms of what occurred in the Cabinet meeting (see Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615-616 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). The discussion in relation to this issue can be found in paragraphs [367] to [373].

His Honour then considered the position of damages and made some provisional findings in relation to this issue.

See link to the judgment: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/732.html?context=1;query=brett%20cattle;mask_path=