Sunday, May 26, 2024

Can this senator save live exports?

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Meet newly appointed senator, the former barrister Varun Ghosh who recently took his place in the Senate after he was officially confirmed as Labor’s choice to replace the retiring Patrick Dodson.

Senator Ghosh, who is 38 years old and hails from Labor’s right faction (which gives us some hope that he lives in the real world and not the one inhabited by the Green Left ideologues), has practised law in both WA and New York following studies at UWA and Cambridge. Coming from a academic family who immigrated from India in the 1980s – his parents are neurologists and his brother is an endocrinologist.

As a lawyer he boasts an impressive legal background that includes excelling in his studies at the University of WA to win a scholarship to complete his Master of Laws at Cambridge in the UK. Prior to joining the bar, he taught administrative and constitutional law at the University of Western Australia.

The bit in Ghosh’s CV that talks about constitutional law is what every sheep farmer in WA should be interested in, as it hints that our new senator might actually understand the concept of States’ rights and that any move to ban a trade that is almost exclusively out of one State may well impinge upon section 52 of the Constitution.  If it does, then this is grounds for an injunction and possibly a High Court challenge. 

Alternatively, I am reliably told by our bush lawyer farmers, we should be using the argument of the tort of misfeasance in public office, which was successfully used in the live export case against the Gillard government.

This tort, over 300 years old, involves an invalid or unauthorised act, done maliciously by a pubic officer, in the purported discharge of their public duties, which causes loss or harm.

The law books tell me the defendant must have exercised the power knowing that he or she was acting in excess of power AND with the intention to cause harm to the plaintiff (sometimes referred to as ‘targeted malice’) OR the defendant has been recklessly indifferent to whether the act was beyond power AND recklessly indifferent to the likelihood of harm being caused to the plaintiff.

Unfortunately, Murray Watt is a lawyer and no doubt he has had the Attorney General make sure they don’t get caught again with the same mistake that former Agriculture Minister Ludwig made back in 2011.

Until we see the legislation we have nothing to go on and ideally the Bill to ban the trade will never see the light of day because MPs like Senator Ghosh will have the courage to stand up in caucus and point out that this is bad policy and as a WA senator he will put the interests of his State first.  

Mind you, the chance of that happening is low as few senators put their State before their party and their career and the new senator probably aspires to go to the top as why else give up a highly lucrative legal career?

If the Bill does get up, the industry needs to be prepared to kick in to fund a major court case. In the meantime read what one farmer had to say to the new Senator and if inspired pick up the pen and follow Hugo’s example and write to your local federal ALP MP.

Related story: Letter from a sheep farmer to Senator Ghosh

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