Farmers pay it forward on big legal battles

At the same time as it has been thrown into the spotlight courtesy of what has arguably been its most influential success, the High Court ruling against the 2011 live cattle export ban, the AFFF is facing the threat of government attempts to stifle class actions.

It has also reached a point in that taking a percentage of compensation winnings will be necessary to top up the kitty for future fights.

Since the mid-1980s forging of the AFFF amid an industrial relations war sparked by what has become known as the Mudginberri dispute, the Fund has, by necessity, had to stay out of the spotlight lest it reveal its hand ahead of an upcoming legal showdown.

Likewise, it has always taken a rather secretive approach to the extent of its coffers and who has contributed.

Now it will be looking to a new model of funding.

Starting with the class action to follow from the recent High Court finding of misfeasance, or misuse of public office, by the then-Labor minister who banned the live cattle trade nine years ago, the AFFF will likely seek to collect 10 per cent of any compensation awarded.

Those lining up to be a part of that live-ex legal action appear in full support. Some even said the opportunity to contribute to the AFFF was a key reason for being involved.

Independent chair Hugh Nivison said it amounts to 'farmers paying it forward' - people who've been helped ensuring other farmers like themselves can be helped in the future.

Donations come in fits and starts, Mr Nivison explained.

"We typically raise money when there are fights that people think are worth supporting and we maintain an investment portfolio that has allowed us to continue over the years," he said.

"We haven't needed to look to another funding model in the past but the expense involved in court cases today is mind boggling."

Individuals typically end up on the AFFF doorstep via agriculture representative groups and while there is an overwhelming abundance of hardship and heartbreak situations, a strict criteria for taking on cases is adhered to.

The AFFF, with a secretariat provided by the National Farmers' Federation, has to be very selective and it is only large, national, precedent-setting type cases that get a look in.

Mr Nivison, who runs Mirani at Walcha, NSW, a Merino stud and commercial cattle enterprise, and is an experienced agribusiness director and chief executive officer, has been an AFFF trustee since 2005.

"In the end what we want to do is make sure when we pursue a cause we don't have to do it twice," he said.

"We are chasing a High Court verdict in our favour that sets a precedent or a legislation change."

The AFFF, he explained, had always been about righting what is obviously wrong.

It's about addressing a travesty of justice, removing unfair and unwarranted barriers to the viability of farming enterprises and removing diabolically onerous laws.

It's designed to help not just farmers, but rural and regional Australia, 'stick up for themselves' and cases are taken on their potential to deliver outcomes that benefit the whole sector, Mr Nivison said.

That's why the six-year legal fight that resulted in a ruling in June in the favour of producers who lost millions as a result of the Gillard Government's decision to ban cattle live exports to Indonesia is being heralded as a landmark win for the AFFF.

The court ruling led to the awarding of almost $3m in damages to Northern Territory live cattle suppliers the Brett Cattle Company, who were lead litigants in a class action.

That class action is now proceeding, with hundreds more litigants involved and a value of the cattle involved locked in by the court that will likely see a total compensation bill around the $600m mark.

NFF president Fiona Simson said the AFFF intervened in cases that had the potential to curtail the continued vibrancy of the farm sector, regional communities and Australia as a whole.

The live-ex ruling highlighted the great strength agriculture and regional Australia had when it united for a common cause, she said.

The case has been the largest both time and expense-wise for the AFFF.

"No single farmer could have ever fought this case by themselves," Mr Nivison said.

He admitted there were times when it was thought the chances of winning were less than 50pc but said it was 'always a worthy cause to pursue.'

"In the end, we have a result where governments are worried about how they make decisions - as they should be," he said.

The AFFF was born out of the 1980s industrial relations war and the need to address what farmers considered grossly outdated and ineffective labour practices that were threatening the viability of agriculture.

Union rigidity and industrial relations laws were stripping profitability from a whole range of rural sectors, from the wharves to the shearing sheds, Mr Nivison said.

At the Northern Territory Mudginberri abattoir, workers had negotiated individual contracts without union involvement. The union set up picket lines. Production was stopped.

"No one today would see the type of actions that went on then as acceptable," Mr Nivison said.

"There was a groundswell of opinion that it had to stop but the only way change could happen was through court action."

Tens of thousands of farmers converged on Canberra and donated to the cause.

Mr Nivison said a lot of financial support also came from non-farming interests.

"In an environment where there was a certain vindictiveness if you put your head up to fight what was happening, this was a way for those who wanted to fight injustice to contribute," he said.

The successful prosecution of the Australasian Meat Industry Employees Union under the Trade Practices Act over this dispute was labelled a breakthrough in breaking the power of the unions and heralding in a new era of contract employment.

Other monumental AFFF cases include the Kirk affair, in which an absentee landowner was held responsible for the quad bike death of his farm manager in 2001.

It was feared the matter would entrench unfair reverse onus of proof requirements for occupational health and safety prosecutions.

In 2010, the High Court upheld an appeal quashing previous convictions stemming from the death of the employee.

"The way the legislation in NSW was at the time meant it was effectively not possible to comply," Mr Nivison said.

While the AFFF doesn't target class actions, and in fact they've been a very small percentage of the work it has done, it may likely still be hard hit by planned government changes aimed at cracking down on class actions.

The new rules, due any day now, would see any third parties funding litigation - such as the AFFF - regulated as if they're running a financial services business, like a bank or an insurance company.

The AFFF's trustees are adamant it is not looking to make money but rather assist farmers fight a legal battle they'd have no chance of taking on individually.

From property rights, to native vegetation, piecework rates, water and coal, the AFFF has continuously had several cases on the go at any one time.

Animal liberation activities and farm invasions are likely to feature strongly in coming years but Mr Nivison indicated legislation may be the target here.

"We don't want the next fight but we know it's coming," Mr Nivison said.

ALSO READ: Will the live-ex ruling stop knee-jerk reactions?

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