This article was written by Rebekha Pattison, Emma Lawrence and Bec Vieceli.
Further to our alert published on 5 June 2020, the Attorney-General issued a statement on 22 July 2020 confirming that the Commonwealth will not be appealing the decision of Rares J of the Federal Court in Brett Cattle Company Pty Ltd v Minister for Agriculture  FCA 732 (Brett Cattle), which held (among other things) that:
- a 6-month order banning live export of cattle to Indonesia purportedly made under regulation 3 of the Export Control (Orders) Regulations 1982 (Cth) and section 7 of the Export Control Act 1982 (Cth) by the former Minister for Agriculture was invalid; and
- the Minister committed the tort of misfeasance in public office in effecting the ban.
Despite acknowledging that “[t]he Government disagrees with some of the principles as they have been applied by the court” and that “[t]he Court’s reasoning in this matter represents a departure from existing legal principles governing both the validity of delegated legislation and the tort of misfeasance in public office”, the statement by the Attorney-General confirmed that the Australian Government had accepted the outcome in the Brett Cattle case and no avenues of appeal would be pursued.
While the Government reserved its right to “press its view of the relevant legal principles if an appropriate case arises in the future”, until such a case arises the principles as set out in the decision in Brett Cattle on the subjects of validity of delegated legislation and the tort of misfeasance in public office will have precedential value and can be relied on by future plaintiffs to challenge government decision-making and action.
Of particular concern to Commonwealth decision-makers as a result of the reasoning in Brett Cattle and the Government’s choice not to appeal the decision may be:
- the potential for an increase in challenges to decisions made under delegated legislation on the grounds of (lack of) “proportionality”; and
- the potential expansion (including into the territory of class actions) of the tort of misfeasance in public office, for which an element of malice on the part of the decision-maker may no longer be required, instead “reckless indifference” may suffice. Notably, for members of the public who claim to have suffered loss due to defective government decision-making, the tort of misfeasance in public office is one of only a few causes of action available to that can result in an award of damages.
If you would like further information about this decision, please reach out to Rebekha Pattison or Emma Lawrence.