DAY three of the Indonesian live cattle ban class action trial was dominated by the defence presenting extensive and intimate details of animal cruelty practices that underpinned the government’s sudden decision to cut off trade.
Lights in the court room were dimmed as Defence Senior Counsel Neil Williams showed selected extracts from the controversial ABC Four Corners episode of May 30, 2011 “A Bloody Business” which was also introduced into trial evidence.
Graphic images of cattle mistreatment ignited the public uproar that applied intense pressure on the former Labor government and a few days after the ABC broadcast the then Agriculture Minister Joe Ludwig eventually suspended the entire market for up to six months.
The Federal Court case is being held in Sydney and seeking to prove misfeasance by the commonwealth - claiming about $600 million in damages - in Mr Ludwig’s signing of the second control order that shut trade, to try and address animal welfare standards in Indonesian abattoirs.
On day three, the plaintiff’s Senior Counsel Noel Hutley spent the day presenting his argument and allowed several Four Corners extracts to be shown to the court room.
But he objected to an attempt by Mr Williams to produce extracts from another batch of “extended footage” that the defence said was supplied to the minister’s department, on May 31, 2011.
Mr Hutley said “we don’t know what the Minister saw” and “we don’t know what anybody saw’.
“We don’t know when it came and we require that to be properly proved,” he said.
“We want proof that what you’re going to be shown was what was seen by the Minister, not general statements about it – in press conferences.
“It’s by no means clear what the Minister saw…and the Minister was in a perfect position to give that evidence.”
As well as exerts several exerts from Four Corners, Mr Williams also read extensively from the transcript of the ABC broadcast with regular reference to central players in the controversy including leading industry representatives and Animal Australia’s investigator Lyn White, the RSPCA Australia and leading animal behaviour expert Temple Grandin.
Justice Rares said the FourCorners report “exposes horrific abuse faced by Australian cattle in Indonesia”.
Use of various restraint boxes installed in Indonesian abattoirs by Meat and Livestock Australia, in contributing to poor animal welfare outcomes during slaughter, like cattle heads slapping on concrete after tripping up, was also discussed extensively by Mr Williams during day three.
The independent expert’s report of May 2010 - released in January 2011 - that investigated animal welfare standards in the Indonesian cattle market, and RSPCA’s response to it in communications, as a template for the animal mistreatment seen on the FourCorners episode, was another central point of evidence presentation.
The report’s executive summary was read out during Friday’s proceedings which said, ‘Animal welfare was generally good. Occasional incidents of noncompliance with the OIE code were observed and recommendations to address these are made through the report. Australian cattle generally found to be coping well in Indonesia with conditions to which they’re exposed’.
But RSPCA’s response was also produced as evidence which provided a different view on the concern about welfare standards.
“From the information available in the report, it’s clear that the majority of animals observed, and likely the majority of animals exported, were subjected to significant levels of pain, fear and distress during their handling and slaughter,” it said.
“The scale and significance of the animal welfare issues described in the report show that, in terms of risks to animal welfare, the situation in Indonesia is equal to the Middle East.
“Given this, it’s not a trade that the RSPCA believes should continue.”
Analysis by RSPCA chief scientist Dr Bidda Jones of the video footage taken by Animals Australia in March 2011 and shown in the ABC broadcast was also presented with records of critical meetings and communications between the two groups, with the minister’s office, leading into the second control order being signed.
Mr Williams said RSPCA was “not primarily an activist organisation in the way that many of the groups under the umbrella of Animals Australia are”.
“RSPCA has a much wider role, and it’s, of course, long established and widely respected,” he said.
Mr Williams read a letter from RSPCA pressuring the government to ban the Indonesian market following the ABC broadcast, expressing views also held by Animals Australia about the market’s pitfalls and government’s suggested response.
“As you were informed today by Tom Maguire of the Australian Meat Industry Council the failure of the Government to appropriately address the situation in Indonesia means the community is losing confidence in domestic livestock industry, is also impacting on our international reputation in key export markets,” RSPCA’s letter said.
“The only option the government has available to it is to immediately halt the live trade in the interests of the whole Australian meat and cattle industry.
“As previously conveyed, the implementation of the export control orders that relate to the 12 abattoirs will in no way serve to protect the welfare of cattle.
“There is no traceability within the supply chain.
“Even if animals could be prevented from being supplied to these abattoirs, they would simply be slaughtered at a neighbouring facility where they will be subjected to equally brutal treatment.”
Who cares what others say it’s about the minister’s decision
Justice Rares however disputed Mr William’s attempt to use evidence of a press conference with the animal welfare organisations and two independent members of parliament - SA Senator Nick Xenophon and Tasmanian MP Andrew Wilkie, pressuring the government to ban the trade.
Mr Williams referred to comments made by Senator Xenophon at the press conference, saying, ‘these are boats that have to be stopped. What we know is the system in Indonesia is so broken, so systematically flawed, that the only sensible response is to have an immediate moratorium’.
But Justice Rares said there was “no evidence” it had been publicised.
He said there was also “no evidence” it had come to the Minister’s attention or the Prime Minister or a cabinet colleague who said, ‘Look at what Senator Xenophon said. You know, you’ve got to do something’, or, ‘This is what you’ve got to do’.
“I mean, the fact that a whole lot of people in the community say, ‘You should do this or that’, doesn’t mean that the action you ultimately do is more or less rational because a whole lot of other people say that’s what you should do,” he said.
But Mr Williams said the joint press conference was between the RSPCA, Senator Xenophon and Mr Wilkie, who made “significant, strong public statements” calling for the banning.
“That was part of the context in which the Minister and the department were called upon to assess what steps to take - that’s the basis on which we tender it,” he said.
However, Justice Rares said there was a “huge amount” of public pressure on the Minister to make a decision and a variety of views were being expressed in the community about what his decision should be but “I don’t care what all these other people said he should do”.
“It’s his job to make the decision, and if he has properly exercised his functions, he has...done nothing wrong and if he hasn’t properly exercised his functions, then I say the decision is invalid and then there’s the next question as to whether it’s a decision that…is a misfeasance of his office, which is potentially a different question,” he said.
“But the fact that there is a lot of political pressure on him…that doesn’t make his decision rational or irrational, good or bad.
“It just says, as I don’t need to be told in a great deal of evidence, there’s a lot of pressure coming on about him having to do something about this because it revealed a very shocking and awful situation in Indonesia.
“At the moment I’m not accepting this in evidence.”
Suspension a cabinet decision?
Late in the day, Justice Rares also said he understood the decision - to ultimately ban the trade for up to six months - was made by cabinet and it was something Mr Williams or Mr Hutley “will need to disabuse me of”.
“Once the cabinet came to a view, the Minister went to implement that view,” he said.
“This went to cabinet.
“I don’t know what happened in cabinet and that’s not the subject of evidence, but the inference I would draw is that the Minister’s decision was the cabinet’s decision and he implemented it.”
But Mr Williams said “No, your Honour” and “what emerged there was a process of departmental advice”.
He said on Monday June 6, 2011, draft recommendations were sent through to the Minister’s office which was a “developmental proposal” to the Minister and “it wasn’t a cabinet submission”.
“The Minister has a discussion with his cabinet colleagues late on the afternoon of June 6 and then proceeds through the next day to take a decision,” he said.
“He plainly proposes to consult with his cabinet colleagues late on the afternoon of June 6.
“There are then further steps taken the next day and he takes a decision, which we will show your Honour is consistent with one of the suite of three recommendations that were sent later on the Monday, in the middle of the day on the Monday, containing three different options.
“And he takes a decision which is consistent with the first of those, option A.
“But in terms of this being a cabinet decision, there’s no evidence to support that, and the evidence is inconsistent with it.
“It shows a process of departmental advising to their Minister who, being a lawyer, appreciated that he was the person with the power.
“It would not be a great leap for your Honour to conclude that if the cabinet had told him that they didn’t agree with a proposal he was taking forward, that he might not have made the decision he ultimately did.
“But there isn’t a basis on which an inference can properly be drawn that there was a cabinet decision taken to this effect, rather a process of consultation, and the Minister’s decision was made, in fact, the following night when he signed the order.”
But Mr Hutley said “that’s a disputed fact” with the debate then focussed on when the actual second control order was signed and registered to take effect.
Justice Rares said “It was registered on the 7th. Therefore, it was made on the 6th. It comes into effect the next day”.
Mr Hutley said “And there’s a note saying he had made it that evening of the 6th - the night of the 6th he made the decision”.
But Mr Williams said “that hasn’t been my understanding at all”.
“They were registered at 9.30 pm on Tuesday, June 7 and then there were the two instruments, each of which is signed and each of which is dated June 7.”
Mr Hutley said the chronology produced by the department - by the advisors - said the Minister made the decision to suspend the trade on the evening of the 6th.
Justice Rares said “The decision antedates the registration. It’s coming into effect is when it’s registered”.
“If you look at the entry on the 6th, the Foreign Minister, the Trade Minister, and I don’t know what Minister Macklin’s office did, but the Foreign Minister was Mr Rudd, the Trade Minister was Mr Emerson, from my recollection,” he said.
“They were all told that night and then they were going to talk to people and draft orders to suspend were sent to the office after midnight on Monday.
“Issues needed to be resolved, six months or ongoing.
“So they had made the decision, but you say it hasn’t been the – the six months were ongoing, that left that all to happen on the 7th.
“As it must have, because that’s when it was signed.”
Mr Williams said “to be clear, we say that the Minister may well have reached a process of mental reasoning, and the evidence suggests that he did, on the night of the 6th that he would make a control order”.
AMIC back the ban
Mr Williams also presented evidence of written communications to the government from AMIC following the ABC broadcast, supporting the ban and disagreeing with the industry’s plan of attack using facilities already able to process cattle to acceptable standards.
“The announcement of a suspension of live export of cattle to the 11 abattoirs does not, in our opinion, adequately address this issue given that live export go to feedlots in Indonesia for finishing before slaughter,” a letter read out by Mr Williams said.
“AMIC questions how the Australian government will enforce this ban.
“AMIC recommends that all live shipments to Indonesia be suspended until there is in place an agreement and a process, including enforcement of whole of life animal welfare standards which are the equivalent of the world class standards applied in Australia.
“Without adequate supply chain control, AMIC is concerned that these animal welfare issues in Indonesia will remain, thus presenting further risk not only to the live export trade but, more importantly, to the reputation of the Australian meat and livestock industry.”
Another communication with the minister’s office at the time said AMIC “strongly recommends” the government not accept the industry’s proposal in response to animal welfare issues that addresses the processing of only 40 per cent of the current shipments of live cattle to Indonesia.
“There is no advice on the proposed slaughter arrangement for the majority 60 per cent of live export cattle shipments, only five of the proposed 25 plants are using stunning of the cattle effectively and consistently prior to slaughter,” the communication said.