Federal Court of Australia

Brett Cattle Company Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2026] FCAFC 63

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The Export Control Act 1982 (Cth) confers power upon the responsible Minister to prohibit the export of livestock from Australia to a particular place, either absolutely or subject to conditions. On 30 May 2011, images of cattle being cruelly slaughtered in Indonesia were broadcast on national television in Australia. Three days later, the Minister made an order prohibiting the export of livestock to 12 named places in Indonesia except pursuant to an approval of a kind provided for in the Act. Five days after that, the Minister made an order suspending any export of livestock to Indonesia for a period of six months (Second Control Order). The decision to ban exports was made abruptly, without prior consultation with relevant Indonesian officials.

2    The beef livestock trade to Indonesia was reinstated less than one month later when an Export Supply Chain Assurance System (ESCAS) was introduced. Some beef producers in Australia maintained that the ban effected by the Second Control Order had immediate and ongoing adverse consequences for the size of the export market for live cattle to Indonesia.

3    In 2014, representative proceedings alleging misfeasance in public office by the Minister in making the Second Control Order were commenced in this Court. The claim was upheld: Brett Cattle Company Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2020] FCA 732; 274 FCR 337. It was found that had the Minister acted with a proper appreciation of the power to make a control order, then three matters would have pertained. First, a control order that was subject to the power to grant exceptions would have been made (Exceptions Order). Second, mindful of the likely reaction of the Indonesian Government to the unilateral imposition of any form of control order, the Minister would have consulted with, and sought to obtain the cooperation of, the Indonesian Government before making the order. Third, upon the establishment of an ESCAS, the power to grant exceptions would have been exercised to allow the export of livestock to Indonesia.

4    On the basis that liability on the part of the Minister had been established, an order was made for a further hearing to determine whether any greater number of live cattle (for slaughter) would have been exported into Indonesia in each of 2011, 2012 and 2013 if the Minister had made an Exceptions Order instead of the Second Control Order (Separate Question).

5    Noting that the Second Control Order was in place from 7 June 2011 to 6 July 2011, on the hearing of the Separate Question it was agreed that the Exceptions Order would have been put in place by 9 or 10 June 2011 and that the ESCAS would have been in place by no later than 27 June 2011. Also, it was common ground that cattle imports to Indonesia in 2011, 2012 and 2013 were below the levels in previous years. Ultimately, there was no issue between the parties that but for the disruption caused by the Second Control Order an additional 88,000 head of cattle would have been imported in 2011. Therefore, the matters in issue on the Separate Question focussed upon the reasons for the lower levels of live cattle imports into Indonesia in 2012 and 2013 when compared to past levels of imports. For each of those years, quotas had been set in Indonesia that were well below past levels of imports. The reasons for the setting of those quotas and whether quotas would have been set at similar levels if the Second Control Order had not been made were the matters at the heart of the controversy on the Separate Question.

6    After a trial that occupied some 12 days, it was determined that no more cattle would have been exported than were in fact exported in 2012 and 2013: Brett Cattle Pty Ltd v Minister for Agriculture (No 5) [2025] FCA 597. Unless otherwise indicated, in what follows paragraph references are to that decision.

7    The representative applicant, Brett Cattle Company Pty Ltd (Brett Cattle) now brings an appeal against that determination. It raises some 15 grounds of appeal. Substantively, the appeal grounds allege various forms of factual error by the primary judge. Most of the written grounds are very long with detailed particulars. Respectfully, they are expressed in a way that is inapt to expose clearly and concisely the nature of the errors that are alleged. Many of the alleged factual errors focus unduly upon a specific phrase used by the primary judge in a particular sentence in the reasons for decision without regard to the overall reasoning pathway of the primary judge. Thereby, they atomise the reasons and, in doing so, fail to articulate the step in the overall process of reasoning as to the facts that is said to be erroneous. Further, a number of the grounds collect together errors that are described in different terms so that it is difficult to tell whether the gravamen of the complaint is said to be an absence of evidence, an insufficiency of evidence, a failure to have regard to all of the evidence or a form of complaint about the relative weight that was given to some aspect of the evidence over other aspects. Precision as to these matters is essential in appeals that allege error as to fact finding. As we will explain, in some respects, the case as presented orally involved further development of the written grounds.

8    These preliminary observations aside, what is apparent is that Brett Cattle’s case on appeal is cumulative in character. It alleges a series of errors which, taken together (as to some or all), are said to undermine the factual foundation for the determination made by the primary judge. In order to understand the grounds and how they might, if established, impeach the reasoning by the primary judge it is necessary to first explain the steps by which the primary judge reasoned to the conclusion that live cattle exports would have been the same in 2012 and 2013 if there had been an Exceptions Order made after due consultation instead of the Second Control Order.

The reasons of the primary judge

9    The questions for resolution by the primary judge concerned: (a) the reasons why the quotas for live cattle imports were set at the levels that applied in 2012 and 2013; and (b) whether the quotas would have been different if there had been an Exceptions Order instead of the Second Control Order.

10    Much of the factual narrative was not in dispute.

11    The key controversies in the appeal concerned the inferences that might be drawn from contemporaneous documents and aspects of the evidence given by Dr Bayu Krisnamurthi, who held assistant ministerial positions in the Indonesian Government during the relevant period. Also of importance were the conclusions that might be reached concerning the reasons for actions taken by Minister Suswono who was the Minister for Agriculture at the time.

12    A feature of the documentary record in the case is that it contains diplomatic reports to the Australian Government and inter-governmental communications at Ministerial level. It also includes relevant Australian governmental documents and publicly available documents concerning the policies adopted by the Indonesian Government concerning beef imports. However, the parties to the proceedings did not have access to internal communications between relevant Indonesian officials.

Three relevant periods

13    Broadly speaking, the factual issues in the case concern three periods. First, the historical context for Indonesian policy concerning self-sufficiency. Second, the period from October 2009 (when President Yudhoyono was re-elected to a second term as President) until June 2011 when the Second Control Order was made. Third, the period from July 2011 (when the ESCAS was introduced and the ban on exports came to an end) until October 2013 (when Indonesia ended the beef quota system and replaced it with a reference price system). As to the third period, of particular significance are the factors that influenced the 2012 quota (which was set in December 2011) and the 2013 quota (which was set in December 2012).

14    Between the second and third periods, the Second Control Order applied. As has been indicated, it was a period of less than a month. Although the events during that intervening period have relevance, it is important to bear in mind that the issues on the Separate Question reduced to a consideration of the significance of the Second Control Order for the setting of quotas at a later time, well after the order had been lifted: in the case of the setting of the 2012 quota, about six months later in December 2011 and in the case of the 2013 quota, about 18 months later in December 2012. Indeed, it is the reasons that were operative on those two December dates that are significant.

15    As will emerge, the primary judge accepted that the Second Control Order came as a shock and that, generally speaking, the Indonesian Government was offended by the total ban. Brett Cattle did not run a case to the effect that the quotas were some form of retaliation or retribution by the Indonesian Government. Therefore, the question is whether the events relating to the Second Control Order altered the policy course of the Indonesian Government in a way that resulted in lower quotas than would otherwise have been imposed. This requires a focus on the evidence as to the course that was being pursued in the second period and whether there was a change in the third period for which the occurrence of the Second Control Order was a materially operative cause.

Some matters of common ground concerning the cattle market in Indonesia

16    As the primary judge explained, the case was primarily about “feeder cattle”, being cattle of a specified weight suitable for fattening in Indonesia before slaughter (at [51]). They are to be differentiated from cattle that are “ready-for-slaughter” and “breeder” cattle. An issue of concern for the Indonesian government at the time was the adoption of policies that encouraged an increase in the population of breeder cattle in Indonesia so as to improve the country’s self-sufficiency in the production of beef. The extent to which that course was being pursued is contentious.

17    For the most part, the importation of beef cattle from Australia was undertaken on the basis that the cattle would be fattened in feed lots for a number of months before being slaughtered. This enabled part of the value in beef production to be captured by local businesses and was a practice supported by Indonesian Government policies. Some ready-for-slaughter cattle were exported from Australia to Indonesia. However, as we will explain, that position changed in March 2010.

18    Otherwise, much of the local production of beef was undertaken by farmers with few cattle, many of whom used the cattle as a form of saving. Indonesian policy documents refer also to a concern that high domestic prices for beef could encourage farmers to sell (for slaughter) cattle that might otherwise form part of the breeding herd and thereby undermine efforts to increase the domestic beef herd in Indonesia.

19    Live cattle imports from Australia grew considerably from 2005 to a peak in 2009 of 751,143.

20    In July 2010, the Indonesian Director-General of Livestock Services issued a notice to importers saying the industry would have an opportunity to import a total of 452,000 head of cattle in 2010 (at [157]). The announcement was seen by the Australian industry as marking a further deterioration (following the matters canvassed at [29]-[44] below) such that the market situation in Indonesia had reached a “critical” stage (at [158]-[160]). Ultimately, 514,935 live cattle were imported in 2010, a reduction of 31.4% from the previous year.

21    At the end of 2010, Indonesia announced a quota for Australian cattle imports of 500,000 for 2011. There was a decline in imports of 18.3% in the first five months of 2011 compared to the same months in 2010 (from 1 January 2011 to 31 May 2011 cattle imports were 203,505 head).

22    The common position that 88,000 more cattle would have been exported from Australia to Indonesia in 2011 if the Second Control Order had not been made leads to the conclusion that about 500,000 head of cattle would have been exported in that year, an amount consistent with the quota set at the end of 2010 for the 2011 year.

23    The quota for 2012 of 283,000 head of cattle was announced in December 2011. It was not reached. Only 276,295 head were imported in that year. The quota for 2013 appears to have been set at 267,000. However, in 2013, 448,950 head of cattle were exported from Australia to Indonesia.

24    Indonesia also imports frozen beef, referred to as “boxed beef”, from Australia and elsewhere.

The findings by the primary judge as to key events and circumstances

25    In what follows we set out the key findings made by the primary judge. Much of what follows adopts the language of the reasons of the primary judge. We do not include references to contentious aspects of the evidence given by Dr Krisnamurthi. Those aspects are best considered when addressing the appeal grounds.

The first period: the historical context

26    For Indonesia, providing food security is a fundamental constitutional principle and imports are permitted “incidentally” to ensure food security (at [67]-[69]). Further, achieving self-sufficiency in beef production along with other staple foods has been a long-standing Indonesian Government policy, but despite those efforts self-sufficiency had not been achieved (at [53], [70]-[76]).

The second period: October 2009 to June 2011

27    Upon his re-election in 2009, President Yudhoyono made a political commitment to deliver food security through self-sufficiency (at [53], [77]-[78]). “The significance of this political commitment is difficult to overstate” (at [78]). It had significance for the substantial number of Indonesians whose livelihood depended on the agricultural sector (at [78]-[80]).

28    Minister Suswono became the Minister for Agriculture tasked with addressing food security, farmer income, sustainability and modernisation (at [81]). Minister Suswono was a member of Indonesia’s conservative Prosperous Justice Party or PKS, the support base for which had traditionally been smallholders and farmers (at [81]). Although estimates vary, about 35% of Indonesia’s population were farmers and agriculture supplied 43% of Indonesia’s employment (at [53]).

29    Indonesia introduced a new beef self-sufficiency program in January 2010 (2014 BSSP) (at [52]). An aspect of the strategy comprising the 2014 BSSP was to keep cattle prices high to improve farmer income and promote livestock farming generally (at [100]). The policies on pricing and trade were “to provide assurance to businesses to enable beef prices to remain attractive but still affordable” (at [100]).

30    On 1 January 2010, the Ministry of Agriculture published a blueprint for the 2014 BSSP (Blueprint) (at [91]). It was to be used to direct operational activities, provide targets and set benchmarks as indicators of success (at [95]). The Blueprint contemplated substantial measures and funds to achieve beef self-sufficiency (at [97]). The strategy was “not solely oriented at meeting consumer needs by controlling imports (cattle and beef) but [was] more directed to the context of increasing production, welfare to farmers, and sustainability of cattle breeding businesses as well as increasing production competitiveness, to reduce dependence directly or indirectly on imported beef and feeder cattle” (at [99]) (primary judge’s emphasis). The Blueprint was replete with references to use of both tariff and non-tariff barriers or policies for the protection of local farmers and businesses (at [102]). It contained proposals to restrict imports (at [104]-[108]).

31    The Blueprint set out models for the progression to self-sufficiency. It contemplated that the domestic cattle population would increase to 14,231,700 in 2014 when beef self-sufficiency (at 90%) would be achieved (at [113], [142]-[143]). The Blueprint set out a progression from a cattle population in 2009 of 12,610,000 (at [113], [142]-[143]).

32    The Blueprint contemplated a special census of cattle numbers around June or July 2011 which census was “absolutely essential … so that there is a clear basis in evaluating the success of the 2014 BSSP program” (at [114]).

33    On 20 January 2010, the President enacted Regulation 5 of 2010 concerning the National Medium-Term Development Plan for 2010 to 2014 (National RPJM) (at [83(a)], [84]). It set out national priorities for food production and contemplated priority programs dealing with the operational implementation of the National RPJM (at [87]).

34    On 28 January 2010, Minister Suswono signed a regulation about the Ministry of Agriculture’s 2010-2014 Strategic Plan (2010 Strategic Plan) (at [117]). It set out plans in relation to beef self-sufficiency that were consistent with the Blueprint (at [121]-[123], [135]). A main target of the 2010 Strategic Plan was improving farmer welfare and the plan noted that it was fundamental that prices did not decrease (at [126]-[127]). One of the strategies to achieve this outcome was to provide protection against “import attacks” (at [127]).

35    From January 2010, Indonesia began reducing the number of cattle imported (at [52]). The number of live cattle import permits were significantly reduced (at [151]).

36    On 5 February 2010, Minister Suswono signed a regulation as a General Guide to the 2014 BSSP (Guide) (at [136]). It set a target of an increase in the beef population to 14.2 million in 2014 with an average growth of 12.4% per annum. It also set a target of increased domestic beef production of 10.4% per year and a reduction in imports of cattle and beef to only 10% of the people’s consumption needs (at [138]). It stated that: “Policies in terms of price and trade must be able to provide certainty to business operators so that meat prices remain attractive but still affordable” (primary judge’s emphasis) (at [139]).

37    On 19 February 2010, a Presidential Instruction was issued for Accelerating the Implementation of the 2010 National Development Priorities (Presidential Instruction No 1 of 2010) (at [148]-[150]).

38    The strategies and actions in the Blueprint, the Guide and the 2010 Strategic Plan were pursued at all levels of government in Indonesia (at [191]).

39    From March 2010, Indonesia began enforcing a 350 kg weight restriction on imported cattle (at [52], [110], [152]). Before then, 20 to 30 percent of imports had been heavier slaughter cattle (at [152]).

40    From early 2010, the Indonesian Government took a more restrictive approach to the granting of import permits in pursuit of its self‑sufficiency policy. The reduction in numbers and the enforcement of the 350 kg limit had a serious impact on the number of live cattle exported from Australia to Indonesia (at [153]-[156]).

41    In December 2010, a Policy Paper was prepared to provide a bridge between the Blueprint and “operational strategies and policies which are focussed and will serve as leverage factor in realising meat self-sufficiency in 2014” (2010 Policy Paper) (at [303]). It included the following statement concerning efforts to increase local livestock production (at [307]):

However, in reality the growth rate of local cattle is not encouraging, only at around 3.27%, due to the slaughter of productive females, which reaches 80% in slaughterhouses in several livestock enclaves. In 2010 local cattle production could only meet 66.28% of the total national consumption needs. If beef self‑sufficiency is to be reached in 2014, then within 4 years local beef production must grow by around 33.72% or an average of 11% per year. This is very difficult to achieve without a Bridging Program, namely the temporary import of feeder cattle breeds.

The third period: July 2011 to September 2013

42    A DFAT cable reported comments by the Director-General for Livestock, Dr Prabowo on 6 July 2011 that he would recommend a hefty cut in live cattle from Australia from the next year as well as reductions to imports of boxed beef. The cable said (at [261]):

Prabowo Caturroso has repeated to us that the quota for cattle and beef imports should be reduced in line with Indonesia’s self‑sufficiency blueprint. Prabowo had earlier advised us that, under its self‑sufficiency policy, Indonesia would only import ten per cent of its beef requirements once it met self‑sufficiency goals ‑ and that it had already met those goals (or 86,000 head of cattle and 31,200 tonnes of beef, reftel JA59958H, paragraph 10 refers). However, during that meeting officials had laughed and admitted that Indonesia had not actually met self‑sufficiency goals and, with rising demand, Indonesia would continue to need beef and cattle from Australia.

43    The reference to an earlier cable was to a DFAT cable sent on 5 July 2011 that had reported that initial figures from Indonesia’s cattle census (undertaken as contemplated by the Guide) had determined that there were already 14.43 million cattle in Indonesia (at [256]).

44    A joint press conference was held in Indonesia on 8 July 2011 between the Australian Foreign Minister and the Indonesian Coordinating Minister for Economic Affairs (at [263]). It announced a resolution of the issues concerning the ban on live cattle exports from Australia to Indonesia.

45    DFAT cables in July and August 2011 expressed relief that a potentially serious issue in the broader bilateral relationship between Australia and Indonesia had been diffused but referred to responses to promote beef self-sufficiency (at [265]-[267]).

46    On 10 August 2011, shipments of live cattle from Australia to Indonesia resumed (at [269]).

47    In September 2011, a DFAT cable reported on communications between Australia’s Head of Mission in Indonesia and Minister Suswono in the following terms (at [270]):

Suswono received HOM warmly and acknowledged the strong and cooperative relationship with the embassy but did not comment substantively on the live cattle issue. HOM also spoke to Coordinating Minister for Economic Affairs, Hatta Rajasa, at his open house event on 1 September and noted progress on the live cattle issue. Rajasa said he was pleased to see the trade had resumed but made no other comment. During the course of calls to a large number of Ministerial open house events this week, no one raised the live cattle trade with HOM, suggesting this issue is not a significant irritant at this stage.

48    In September 2011, a new framework for quotas and permits for live cattle and boxed beef was introduced in Indonesia (at [271]-[291]). It provided for a coordination meeting involving the Ministry of Agriculture and the Ministry of Trade to determine quotas for live cattle and boxed beef, with the responsibility for issuing import licences to transfer to the Ministry of Trade with effect from 1 January 2012 (at [286]-[290]).

49    In November 2011, the results of a national census of cattle as contemplated by the Guide were published (at [293]). The census concluded that there was a total of 14,824,373 head of beef cattle in Indonesia (at [294]).

50    A report of a meeting with Dr Prabowo on 16 November 2011 was in the following terms (at [296]):

We asked about likely cuts to quota due to national herd census results. He agreed that the results of the census of 14.82 million ekor [head] exceeded the self sufficiency target set for 2014 (14.2 mil[l]ion) but said that the problem was they were spread out all over the archipelago and costly to transport to population centres. He said that the quotas were likely to be reduced cf. [scil: compared to] this year. He also said that it would be difficult for them to agree.

51    There were reports from DFAT of differences in views as between the Ministry of Trade and the Ministry of Agriculture as to the quotas to be set for 2012 (at [301]-[302]).

52    On 2 December 2011, Minister Suswono made a regulation that made various changes to the 2010 Strategic Plan (at [314]).

53    In 2011, domestic production of beef increased to 485,333 tonnes which was above the target in the 2010 Strategic Plan and the revised Strategic Plan (at [321]). The quota for boxed beef in 2011 had been initially 50,000 tonnes, later increased to 99,000 tonnes. In the result, 107,000 tonnes were imported (at [300]).

54    The 2012 quotas of 283,000 head of live cattle and 34,000 tonnes of boxed beef were announced on 15 December 2011 (at [315]). The 2012 quota for boxed beef was subsequently increased to 41,000 tonnes (at [300]).

55    A DFAT brief to the Australian Minister for Trade and the Minister for Agriculture for a visit in March 2012 referred to various “irritants” and issues between Australia and Indonesia. The brief did not suggest that Indonesia’s stance on live cattle or boxed beef imports was motivated by anything other than its pursuit of the 2014 BSSP (at [322]-[326]).

56    In April to June 2012, the Ministry of Trade in Indonesia considered whether there should be an increase of the 2012 quota in light of rising prices (at [327]). A DFAT cable sent on 5 April 2012 included the following, based on reports from “industry representatives” (at [329]):

Indonesian industry representatives have told us the Ministry of Agriculture wants to hold the line on decreasing cattle imports in part by way of reprisal for last year’s trade suspension. The Ministry of Trade and Coordinating Ministry are clearly alert to the impact of beef shortages on prices for consumers and aware that prices are already rising. They will need to be able to point to rising demand to appeal to domestic constituents (including the Parliament) and demonstrate that any increase in quota appears to be consistent with the self‑sufficiency blueprint. The Ministry of Agriculture has made clear that it will be inflexible and seek to stick to the official self‑sufficiency blueprint projections.

57    A DFAT cable sent on 20 April 2012 included the following (at [333]):

The Agriculture ministry has maintained a consistent line through all recent meetings, pointing to cattle census results from last year and expressing confidence that domestic cattle herds in East Java, Central Java, West Nusa Tenggara, Bali, South Sulawesi, and Lampung, are sufficient to produce enough local beef to meet demand. Industry problems, according to the Ministry, are therefore more a matter of distribution from remote provinces to the populous capital. The Trade and Coordinating Ministries appear to be more open to relieving the squeezed market and addressing industry noise through a revision of the national import quotas applied to live cattle and boxed beef (JA61009H refers). However, to date, no agreement has been reached and there is a growing feeling of frustration by other Ministries with Suswono’s intransigence. Notably, in yesterday’s announcement Suswono did refer to imports as a possible solution to the current supply problems.

58    After Indonesia partially banned beef products from the United States in response to a reported discovery of BSE (ie bovine spongiform encephalopathy, commonly known as mad cow disease), the Director of DFAT’s Indonesia Economic and East Timor Section provided the following advice (at [334]):

Post cautions against any official comment given lingering resentment in Indonesia (see JA61002H) on the suspension on live cattle exports. Post notes that Indonesia is unlikely to want to see Australia rewarded through further monopolisation of the market.

59    On 18 May 2012, a Minute to the Secretary of the Department of Agriculture in Australia for the purpose of a meeting with Australia’s Ambassador to Indonesia advised (at [336]-[337]):

The 2011 [sic] quota is significantly lower than the 2011 quota (which was 500,000 head). However, this is not a response to the temporary suspension of Australia’s live cattle exports. Rather, it reflects Indonesia’s move towards self‑sufficiency in a number of commodities, including beef.

…

In support of its goal of self‑sufficiency in beef, Indonesia has also imposed volume restrictions on imports of boxed beef. For 2012, Indonesia has imposed a limit of 34 000 tonnes of boxed beef (from all sources), with import permits issued on a six‑monthly basis.

On 26 June 2012, a DFAT Cable recorded (at [340]):

The Ministry of Agriculture (MoA) seems to be stubbornly holding the line and insisting that second half year quotas for live cattle and boxed beef will be 98,000 head and 8,300 tonnes respectively. These volumes are significantly lower than the first half year when 185,000 head of live cattle was issued as import permits (of which approximately 90 per cent will be realised as imports by 30 June) and a total of 25,700 tonnes of boxed beef. This seems to fly in the fact of all price signals coming from the market and representations from a number of industry bodies. It is also at odds with views from both the Ministry of Trade (MoT) and the Coordinating Ministry for the Economy, who are looking for evidence to support the MoA assertion that domestic sources can meet the peak demand period ahead over Ramadan.

…

Sembiring said that, of the five key food commodities identified in the self‑sufficiency blueprint, only beef showed any evidence that production had increased (he was referring to last year’s cattle census). Hence, Suswono was reluctant to increase quotas, which would contradict the claim that Indonesia had already reached a domestic herd size needed for self‑sufficiency.

60    A DFAT cable sent on 10 July 2012 reported that the Ministry of Trade had signed off on import permits for 8,300 tonnes of boxed beef and the total residual quota of 98,000 head of live cattle for the rest of the year (at [346]). The cable ended with comments that included:

7. The numbers issued under permits for boxed beef and live cattle are consistent with figures defined under the self‑sufficiency blueprint (ten per cent of national demand) and reflect the Ministry of Agriculture’s conviction that domestic supply (including the 150,000 head of cattle already in feedlots) will see them through Ramadan. We have previously reported on the Ministry of Trade’s concerns about the rising trend in beef prices and concerns about how supply will be met in the post Ramadan period. We should not necessarily expect further issue of live cattle permits for the fourth quarter.

8. It is post’s opinion that, without upwards revision following Ramadan, Indonesia’s beef market will become critically undersupplied. This view is supported by many Indonesian official interlocutors. In particular, the boxed beef supply will be quickly expended.

61    On 1 August 2012, the Indonesian Ministry of Trade issued 7,000 tonnes of boxed beef quota for the processing sector (at [351]).

62    In October 2012, the Indonesian Ministry of Agriculture published a further revision of the Blueprint (at [352]).

63    On 25 October 2012, a DFAT cable reported on statements that were indicative of further incremental reductions in quota levels for 2013 (at [353]).

64    In November 2012, the Indonesian Ministry of Agriculture published statistics that estimated as “preliminary figures” that the beef cattle population in Indonesia was 16.034 million (at [354]).

65    DFAT cables in November and December 2012 reported on different views within the Indonesian Government concerning the setting of beef quotas and concerns about high beef prices (at [357]-[361]).

66    Ultimately, despite views about inadequacy in beef supply, the quota for 2013 appears to have been set at levels announced at a meeting on 5 December 2012 of 267,000 head of cattle and 32,000 tonnes of boxed beef (at [364]-[374]).

67    In May 2013, preliminary results from the national census indicated that the domestic herd numbers were lower than anticipated (at [380]).

68    At the end of May 2013, several regulations were made which in broad terms were designed to accelerate beef imports in order to reduce prices (at [382]).

69    In July 2013, around 25,000 permits for ready-for-slaughter cattle were issued (at [389]).

70    A DFAT cable sent on 20 July 2013 reported that the Indonesian Trade Minister had said that the Government will remove import quotas for beef and live cattle to stabilise domestic beef prices and curb inflation (at [390]).

71    On 2 September 2013, regulations were made replacing the quota system with a reference price system (at [394]).

72    By October 2013, import permits had been issued for 267,000 feeder cattle and 100,000 slaughter cattle. In the final quarter of 2013, a further 204,447 cattle were imported. The boxed beef trade also increased following the removal of quotas (at [396]).

The reasoning pathway of the primary judge

73    The primary judge reasoned to the conclusion that the number of cattle that would have been exported to Indonesia would not have been any higher if the Second Control Order had not occurred, by the following steps:

(a)    Although earlier attempts at beef self‑sufficiency had failed, in 2009 the Indonesian President made a renewed political commitment to achieving beef self‑sufficiency. The reasons for the two earlier attempts failing were examined and they informed the strategy for the renewed attempt. Key aspects of the renewed push towards self‑sufficiency included: increased funding; the use of organisational structures throughout government to the regional level; the involvement of support from several Ministries apart from the Ministry of Agriculture and the development of operational initiatives directed towards increasing the size of the domestic cattle herd (at [418], [457], [467], [498], [519]-[528]).

(b)    A reduction in imports was a key part of the design and implementation of the 2014 BSSP (at [423], [424]-[426], [428], [457], [468], [470], [494]).

(c)    Imports brought beef prices down and this harmed domestic production and farmers (at [445]). Although the cost of beef to consumers was a consideration in setting the level of imports, higher beef prices improved the incomes of small-scale farmers which was in accordance with Indonesia’s broader policy objectives (at [429]).

(d)    The decline in imports between January 2010 and May 2011 was explained by Indonesia’s renewed and concerted vigour in pursuing beef self-sufficiency by 2014 (at [52], [57], [82], [83], [193], [410]-[411], [456], [459]-[463]).

(e)    The weight restriction on cattle imports (a maximum of 350 kg) was deliberately enforced from March 2010 to add value in Indonesia by feeding cattle for between 90 to 120 days in Indonesian feedlots where they would be slaughtered at between 400 kg to 500 kg and possibly more, thereby increasing domestic production (at [412]).

(f)    In the period before the Second Control Order, it was not the case that self-sufficiency was being pursued on the basis that the numbers of cattle imports would be maintained at about 500,000 head each year (at [432]-[440]).

(g)    It was not completely accurate to refer to the policies being pursued by the Indonesian Government up to the time of the Second Control Order as seeking to achieve a balance between food security and self-sufficiency. Rather “beef self‑sufficiency was aimed at broad reform and improvement of Indonesia’s agricultural sector which included millions of small‑scale farmers with two to three cattle. It sought to improve farmers’ welfare and income, including by lowering imports with a view to improving farmers’ income through beef prices” (at [442]).

(h)    “The total ban was unexpected by, and ‘shocked’, at least some members of the Indonesian Government, including Minister Suswono and Dr Krisnamurthi, and probably many more, including the Minister of Trade, the Minister of Finance and the Minister of Industry and others” (at [447]).

(i)    Generally speaking, Indonesia was offended by the total ban on beef cattle exports and “had to address [urgently] the total ban and was concerned about meeting its immediate beef needs, particularly if the total ban were to remain in place for an extended time”: (at [447]).

(j)    There is no significant support in the contemporaneous documents for a concern on the part of members of the Indonesian Government that there was an ongoing risk that the Australian Government could again ban the export of live cattle to Indonesia (at [330], [449]-[450]).

(k)    Any early concern about a future ban diminished rapidly after the Second Control Order was repealed (at [214], [450]).

(l)    By the end of 2011, the Indonesian Government would not have considered the prospect of another ban as realistic (at [500]).

(m)    The Second Control Order did not cause the acceleration of the pursuit of the 2014 BSSP (at [495]-[513], [534], [545]).

(n)    It was essential to the pursuit of beef self-sufficiency as part of the 2014 BSSP that a detailed census be carried out to inform its implementation (at [458], [473]). The census results were central in setting the quota for 2012 (at [473], [476]-[477], [500], [501]-[506], [514], [532]-[533], [544]). The documents do not suggest that the Indonesian Government considered the results of the census carried out in June 2011 to be anything other than accurate (at [482]-[484]).

(o)    The 2012 quota was adhered to because the Indonesian Government considered it to be the number that was consistent with its 2014 BSSP as it then stood and not for reasons associated with the Second Control Order (at [542], [544]).

(p)    There were no material events that were said to have occurred between the setting of the 2012 quota and the setting of the 2013 quota so the conclusions as to the 2012 quota apply equally to the setting of the 2013 quota (at [550]).

(q)    The documents concerning the setting of the 2013 quota indicate that the 2013 quota was set by reference to Indonesia’s considered view about its capacity to supply beef from domestic sources (at [551]-[556]).

(r)    As found in the reasons on liability, an Exceptions Order would have been put in place in an orderly way after seeking to gain the cooperation of the Indonesian Government and others. Whilst there may have been less, or even no, “shock” and offence, an Exceptions Order would also have caused significant disruption to Indonesia’s live cattle supply (at [448], [546]).

(s)    If an Exceptions Order had been made instead of the Second Control Order, “the Indonesian Government is likely to have been concerned that further Exceptions Orders would be made, causing disruption to trade” (at [451]).

(t)    The Second Control Order caused the Indonesian Government to explore options of importing live cattle from countries other than Australia. An Exceptions Order is likely to have had no materially different effect (at [217]).

(u)    There is no good reason to think that an Exceptions Order would have had any meaningfully different consequence in terms of Indonesia pursuing its 2014 BSSP with vigour and in setting and enforcing quotas than the consequences in respect of those matters in the Second Control Order scenario (at [546]-[548]).

The grounds of appeal

74    As has been mentioned, Brett Cattle identified 15 grounds of appeal. Ground 4 is not pursued. By reason of their form, as well as their development in the course of oral argument, it is necessary to attempt to distil the character of the appeal grounds.

75    We understand the appeal grounds as pursued to be as follows.

Grounds 1, 2 and 3: The 2014 BSSP was an aspirational and contingent plan

76    In oral submissions, grounds 1, 2 and 3 were brought together as part of an over-arching ground that challenges parts of the reasoning pathway of the primary judge concerning the character of the 2014 BSSP and the commitment to its implementation. The grounds allege that the primary judge erred in fact in making five findings, namely that:

(a)    it was difficult to overstate the strength of the President’s commitment to delivering food security through self-sufficiency (ground 1(a));

(b)    the Indonesian Government was more committed to achieving beef self-sufficiency than it had been in previous years (ground 1(b));

(c)    it was a fundamental aspect of the 2014 BSSP to keep cattle prices high to improve farmer income and promote livestock farming generally (ground 2(a));

(d)    a reduction in boxed beef and live cattle imports was a key part of the design of the 2014 BSSP (ground 2(b)); and

(e)    Indonesia’s beef self-sufficiency policies in place at the time of the Second Control Order sought to improve farmers’ welfare and income by lowering imports of cattle and boxed beef with a view to improving farmers’ income through beef prices (ground 3).

77    As presented orally, the flaw in these findings is said to be found in the primary judge allegedly treating the import targets that were set as part of the 2014 BSSP as outcomes that were sought to be achieved with the singular aim of improving farmer income when the targets were aspirational and contingent on balancing competing aims. It is said that, under the 2014 BSSP, pursuit of improvements in farmers’ income was required to be balanced with ensuring food security, that is the availability of staples at affordable prices. The findings by the primary judge the subject of challenges by way of grounds 1, 2 and 3 are alleged to wrongly attribute to Indonesia the firm pursuit of the targets in the 2014 BSSP.

78    Taken together, the errors are said to have caused the primary judge to over-emphasise the aim of improving farmer income and to attribute to Indonesia an intention, from the outset, to pursue the import targets in the 2014 BSSP without regard to other consequences, particularly the prospect of increasing prices for beef.

Ground 5: Indonesia’s intention had been to continue importing at least 500,000 head

79    Ground 5 alleges error by the primary judge in rejecting a contention advanced by Brett Cattle to the effect that, before the Second Control Order, pursuit of beef self-sufficiency was not planned to involve any reduction or restriction of import quotas at least in the short term. Rather, so it is said, quotas were expected to be maintained at the level of around 500,000 head of cattle per year and the increasing demand for beef in Indonesia was hoped to be met through increased production from the domestic herd.

80    In form, the ground alleges error by stating a factual finding that should have been made by the primary judge. However, in substance, the ground challenges findings that were made by the primary judge. This is exposed by the form of ground 5 which alleges a number of errors that were involved in the primary judge failing to accept Brett Cattle’s contention.

81    Orally, the ground was reshaped to a contention that the primary judge erred in failing to find that before the Second Control Order, Indonesia intended to maintain quotas at approximately 500,000 head with upward flexibility. This builds upon grounds 1 to 3 because it requires the targets in the 2014 BSSP to be treated as a form of aspiration rather than as genuine policy goals to which operational plans and funding had been directed.

Grounds 6 and 7: A profound and enduring loss of trust in Australia

82    Grounds 6 and 7 challenge the related findings by the primary judge that the Indonesian Government would have realised quickly that the Second Control Order was unlikely to last 6 months and it was likely that any early concern about a future ban diminished rapidly once the Second Control Order was revoked. In the notice of appeal, the findings that should have been made are said to be (a) the Indonesian Government could not predict the likelihood of the Second Control Order being repealed before the end of its six month term; and (b) even after the Second Control Order was lifted the Indonesian Government considered that there was an ongoing risk that there would be another ban.

83    As presented orally, the case advanced is to the effect that the primary judge should have found that the Second Control Order caused a profound and enduring loss of trust in Australia that persisted until the quotas were set for imports in each of 2012 and 2013. It relies to a considerable extent upon evidence to the effect that, before the Second Control Order, an alleged assurance had been given to Minister Suswono that there would be no total ban.

Grounds 8 and 9: The 2011 cattle census was not of central importance in setting the 2012 quota

84    Grounds 8 and 9 challenge related findings by the primary judge as to the significance of the 2011 cattle census in the decision to set the 2012 quota. It is said that instead of finding that the 2011 cattle census was an important consideration in setting the quota, the primary judge should have found that the census was a “reference” that was used but it was not of central importance in setting the quota. Further, it is said that instead of finding that the 2011 cattle census was interpreted as indicating that imports of cattle could be reduced, the primary judge should have found that the census results “were not interpreted as indicating that imports of cattle could be reduced below 500,000 if the supply of beef in Indonesia was to remain sufficient to meet demand at affordable prices”. Respectfully, expressed in those terms, the finding that should have been made is somewhat obscure.

85    As advanced orally, a different finding is urged in place of the challenged findings of the primary judge. It is to the effect that the Ministry of Agriculture’s public references to the census provided a diplomatically convenient justification for a quota reduction actually motivated by distrust of Australia caused by the Second Control Order.

Grounds 10, 11, 12 and 13: The 2012 and 2013 quotas were set and enforced because of Indonesia’s loss of trust in Australia

86    Ground 10 alleges error by the primary judge in making the finding in the second sentence of the following passage of reasoning (from [467]):

The facts do not provide a serious basis for concluding that exports would have begun to increase were it not for the Second Control Order. To the contrary, it is more likely that Indonesia would have continued to reduce its imports of cattle (and boxed beef). First (and of itself sufficient), the Indonesian Government would have continued to pursue its 2014 BSSP. The President had made a public commitment to the policy. It was being pursued with vigour. It was organised and funded. Domestic production was increasing. It was in the interests of Indonesia’s large farming population. And it would have been politically impossible to bring the program to an end or not continue to pursue it as it had been pursued. The evidence indicated that Indonesian farmers reacted negatively to increased imports and particularly to price decreases caused by increased imports.

87    The above reasoning formed part of the primary judge’s reasons for rejecting the evidence of an expert, Mr Smith, to the effect that there would have been more cattle exported in 2011 than in 2010 if the Second Control Order had not been made. It is a passage of reasoning that was undertaken in a context where Brett Cattle no longer maintained that more than 88,000 additional cattle would have been exported in 2011 if the Second Control Order had not been made (at [465]).

88    The finding is challenged on the basis that it implies that imports would have reduced below 500,000 per year in 2012 and 2013. It is said that the primary judge should have found that were it not for the making of the Second Control Order, it is likely that imports of cattle to Indonesia would not have reduced below 500,000 in each of 2011, 2012 and 2013.

89    As advanced orally, ground 10 is linked with grounds 11, 12 and 13. Taken together, the contentions advanced in support of the four grounds build upon earlier grounds. They assume success in the claims to the effect that the 2014 BSSP was aspirational and required the adoption of a flexible approach as part of the balanced aims of the plan, as well as the claim that such an approach would have resulted in quotas in the order of 500,000. They also assume success in the claim that there was a loss of trust in Australia that affected decisions as to the quotas in 2012 and 2013 as well the claim that the 2011 quota was not of significance.

90    Grounds 11, 12 and 13 challenge the ultimate conclusions reached by the primary judge to the effect that (a) the Second Control Order did not cause the Indonesian Government to materially intensify or accelerate Indonesia’s pursuit of beef self-sufficiency; (b) the 2012 quota did not mark a change in approach to that taken in 2010 before the Second Control Order; and (c) the quotas for live cattle exports were not set in response to what was perceived to be an ongoing threat to food security arising from the making of the Second Control Order.

91    As presented orally, grounds 10, 11, 12 and 13 are said to involve an error in failing to find that the quotas that were set for 2012 and 2013 involved an intensification and acceleration of the pursuit of the targets in the 2014 BSSP. This was said to be inconsistent with the flexible approach and balanced aims required by the 2014 BSSP (that should have been found to be the approach that was being adopted before the Second Control Order). The alleged change in approach to the implementation of the 2014 BSSP is said to have been seen by the Indonesian Government to be rational because of a persisting loss of trust in Australia. The contention as to the finding that should have been made is to the effect that the loss of trust caused a greater risk to be taken in the approach to implementing the 2014 BSSP by persisting in pursuing the targets in the 2014 BSSP despite high beef prices that could (and did ultimately) compromise the very self-sufficiency that was the objective of the 2014 BSSP.

92    In effect the claim is that a loss of trust in Australia caused policy decisions to be made of a kind that would not have been made if the Second Control Order was made. The alleged error by the primary judge is a failure to find that the Second Control Order caused the Indonesian Government to adopt a form of “self-sufficiency at any cost” approach. Further, it is said that there should have been a finding that such a course was undertaken despite awareness of the risk that sustained high prices for beef could be counter-productive (by causing breeders to be sold for slaughter) unless there was confidence that the growth in the domestic herd was being encouraged by those higher domestic prices.

Ground 14: In an Exceptions Order Scenario, Indonesia would not have lost trust in Australia

93    Ground 14 challenges the separate conclusions reached by the primary judge to the effect that the levels at which the 2012 and 2013 quotas were set would not have been materially different if there had been an Exceptions Order made after consultation, instead of the Second Control Order. The submissions advanced depend upon success with grounds 1, 2, 3 and 5 as to the nature of the policy that was allegedly being pursued before the Second Control Order. The reasoning of the primary judge rested upon findings to the effect that the targets in the 2014 BSSP were being pursued with vigour and there was a point where the 2011 quota indicated that there had been considerable success in increasing the size of the domestic beef herd.

94    It is not suggested that Brett Cattle might succeed on ground 14 even if it fails on its other grounds. The consequences of partial success as to those other grounds for ground 14 were not canvassed.

Ground 15: There should be a finding as to the amount of cattle that would have been exported

95    Ground 15 assumes success on the other grounds such that the appropriate finding to be made is to the effect that the making of the Second Control Order resulted in less cattle being exported to Indonesia in each of 2012 and 2013. The finding that should be made is said to be that at least 500,000 head would have been exported in each of 2012 and 2013, alternatively some greater number than were in fact exported. Contentions are advanced as to the requirement for assessment of the number of cattle or as to the loss of a chance. Alternative forms of answers to the Separate Question are advanced.

96    The respondent seeks a further opportunity to make submissions as to such matters if there is the requisite degree of success by Brett Cattle in the appeal that the issues raised by ground 15 required consideration.

The precise character of the alleged errors in factual findings made by the primary judge

97    Errors of fact that may found an appeal take many different forms. However, there is no relevant error unless it is consequential. That is to say, the alleged error whether by itself or with other alleged errors must be shown to lead to a different outcome if the error is demonstrated. Well drawn appeal grounds will expose the extent to which it is necessary for more than one ground to be upheld if the appeal is to succeed. It is important that the grounds are both explicit and precise as to the consequences if some, but not all, grounds are upheld. Although the dependence of some grounds upon other grounds is reflected in the way the appeal grounds are expressed, there is no clear engagement with the extent to which the appellant accepts that success in the appeal requires success on multiple grounds. We address this aspect further below.

98    Separately, in general, the appeal grounds are not presented in a way that exposes explicitly the nature of the alleged factual error. As we have indicated, there are important distinctions to be observed when it comes to alleged errors in fact-finding. The error may take the form of making a finding that is contrary to unchallenged evidence. The error may take the form of a failure to have regard to relevant evidence in making a factual finding. The error may take the form of a finding that is said to be against the weight of the evidence. The error may be said to be the consequence of a misunderstanding as to the nature of the evidence. The error may be said to involve the drawing of conclusions by way of inference or based on credibility findings that are glaringly improbable.

99    Although some of the written grounds seek to describe the nature of the error alleged, in the result, for the most part, the appeal was presented on the basis that the primary judge made findings that are against the weight of all the evidence. However, in certain respects, it is said that the primary judge misunderstood the evidence or that the findings made were not supported by the evidence in the sense that there is no or insufficient evidence to support them. Therefore, in dealing with the appeal grounds, it will be necessary to expose the way in which the alleged error is characterised in argument.

The cumulative nature of the appeal grounds

100    As we have explained, grounds 10 to 15 proceed on the basis that there has been success, at least to some extent, on the earlier grounds. For reasons that follow, each of grounds 1, 2, 3, 5, 6, 7, 8 and 9 have not been made out. Consideration of the remaining grounds would require the formulation of an assumption as to some degree of success on the earlier grounds. The cumulative nature of the grounds makes that task difficult to undertake in any meaningful way. Additionally, in relation to ground 15, there would be the further difficulty that there are no findings by the primary judge as to the approach that should be adopted to determining the numbers of cattle imports if Brett Cattle was otherwise successful. In those circumstances, it is neither necessary nor appropriate to consider the remaining grounds.

Grounds 1, 2 and 3: The 2014 BSSP was an aspirational and contingent plan

101    Grounds 1, 2 and 3 all concern factual findings in the period before the Second Control Order.

102    Ground 1 as expressed in the notice of appeal has two elements. The first element is the contention that the primary judge erred in concluding (at [78]) that the political commitment of President Yudhoyono to deliver food security through self-sufficiency was, from the time of his re-election to a second term in July 2009, so great that it was “difficult to overstate”. Brett Cattle links that error to three mentions by the primary judge of the President’s political commitment to the 2014 BSSP in his reasoning on causation (at [456], [467] and [471]).

103    The second element is the contention that the primary judge erred in implicitly concluding (at [417]-[419]) that the Indonesian Government was more committed to achieving beef self-sufficiency from 2009 onwards than it had been in previous years during earlier beef self-sufficiency programs. Brett Cattle links that error to the primary judge’s statement in his reasoning on causation that the 2014 BSSP was developed after examining the reasons for earlier failures and that it was “carefully planned, widely promoted and well-funded” (at [456]).

104    The essential contention that Brett Cattle makes in respect of ground 1 is that the primary judge in effect concluded that the Indonesian President and his Government were willing, from the outset, to pursue the self-sufficiency targets in the 2014 BSSP, in particular that 90% of domestic beef consumption be sourced domestically, at virtually any cost and to thereby sacrifice the other aims of the 2014 BSSP in a manner which would undermine the sustainability of the self-sufficiency goal (T7:15-20). It is said that his Honour treated the other aims of the 2014 BSSP as subordinate to the 90% of domestic beef consumption aim (T7:33-35). Brett Cattle identifies relevant aims of the 2014 BSSP, in addition to self-sufficiency, as price stability and welfare of the farming community, all of which had to be “kept in balance” (T5:44-47).

105    There is no substance to ground 1. The primary judge dealt at length and in specific detail with the Indonesian legal system, food security and beef self-sufficiency up until 2010 (at [66]-[76]), the renewed push towards beef self-sufficiency following the re-election of President Yudhoyono in 2009 (at [77]-[83]), the National RPJM (at [84]-[90]), the Blueprint (at [91]-[116]), the 2010 Strategic Plan (at [117]-[135]), the Guide (at [136]-[147]) and the Presidential Instruction Number 1 of 2010 (at [148]-[150]). No purpose is served in repeating his Honour’s treatment of these matters. It suffices to say that they amply support the characterisation of the President’s commitment to beef self-sufficiency as being “difficult to overstate”. They also amply support his Honour’s treatment of beef self-sufficiency as being so significant a priority as to explain and justify reducing live cattle imports even in the face of rising domestic prices.

106    Grounds 2 and 3 should be taken together. By ground 2, Brett Cattle asserts that, in respect of the 2014 BSSP, the primary judge erred in finding that it was a “fundamental” aspect of the strategy comprising the 2014 BSSP “to keep cattle prices high to improve farmer income and promote livestock farming generally” (at [100], [470]) and in finding that a reduction in boxed beef and live cattle imports was “a key part of the design of the 2014 BSSP” (at [426]; see also at [442]), “central to the 2014 BSSP” (at [468]), and a premise of the 2014 BSSP (at [494]). It is said that those findings are premised on an erroneous characterisation of the content and tenor of foundational documents of the 2014 BSSP, in particular, the 2010 Strategic Plan, the Blueprint and the Guide.

107    By ground 3, Brett Cattle asserts that the primary judge erred in finding that one of the ways in which Indonesia’s beef self-sufficiency policies at the time of the Second Control Order sought to improve farmers’ welfare and income was “by lowering imports” of cattle and boxed beef “with a view to improving farmers’ income through beef prices” (at [442]; see also at [470]). It is said that those findings were in part premised on the erroneous findings that are the subject of ground 2, and they were in part premised on an erroneous characterisation of the evidence of Dr Krisnamurthi.

108    As regards Dr Krisnamurthi’s evidence, Brett Cattle relies on his evidence that self-sufficiency had been “the main program of Indonesian agriculture development since the late 70s – 1970s, so it has been there for 50 years”. That evidence says nothing about the commitment to the new program expressed in the 2014 BSSP relative to previous programs. As noted by the primary judge (at [78]), Dr Krisnamurthi’s evidence was that when President Yudhoyono was re-elected in October 2009, he made a political commitment to deliver food security through self-sufficiency. His evidence was also that the President’s particular interest was the six million or so small farmers who held small cattle holdings – he wanted to improve their prosperity and the self-sufficiency of Indonesia generally with respect to food production. Dr Krisnamurthi explained that Minister Suswono had been tasked by the President with addressing food security, regional food self-sufficiency and farmer income, as well as the sustainability and modernisation of Indonesian agriculture (at [81]).

109    As regards the particular documents, Brett Cattle’s approach is to analyse them in detail in support of the submission that the primary judge erred by over emphasising one aim of the 2014 BSSP, namely the improvement of farmer income by maintaining high prices, and ignoring that high domestic prices would serve to encourage the sale of breeding stock for slaughter thereby undermining self-sufficiency by the depletion of the national breeding herd (T10:38-41; 12:45-47). The particular target of Brett Cattle’s criticism is the primary judge’s finding that a “fundamental” aspect of Government policy was “to keep cattle prices high to improve farmer income and promote livestock farming generally” (at [100]).

110    The primary judge derived the characterisation “fundamental” from a statement in the 2010 Strategic Plan that selling prices must increase or at least remain constant in order to increase farmers’ income and it is therefore “fundamental to ensure that selling prices do not decrease”. The primary judge quoted a statement in the Blueprint that “[p]olicies on pricing and trade must be able to provide assurance to businesses to enable beef prices to remain attractive but still affordable” in support of the finding that an aspect of the strategy was to keep cattle prices “high”. Brett Cattle submits that prices that are “attractive” to producers are not the same as prices that are “high” and that the conclusion with regard to “high” prices is therefore not supported by the evidence (T14:13-15:32).

111    The focus by Brett Cattle on the primary judge’s use of the word “high” is misplaced. His Honour did not conclude that the strategy in support of self-sufficiency was that prices should be high at all costs. In effect what his Honour found was that the strategy was that prices had to be high enough to be attractive to farmers so that they invested in beef breeding and production, but also affordable to consumers. That much is clear from his Honour’s later statements (at [470]) that although “price stability was desired and prices needed to be affordable for urban and other consumers, it was a ‘fundamental’ component of the strategy that beef prices be kept at a level sufficient to meet the objective of increasing farmer income” and that “[o]ne method of maintaining sufficiently high beef prices was to restrict imports”. There is no error in that characterisation of the policy.

112    Brett Cattle submits, in effect, that the strategy could not have been to maintain high prices because the later restriction on imports led to prices that were so high that farmers were driven to sell their breeding stock thereby undermining the policy of self-sufficiency. But that is to reason the wrong way around. The primary judge correctly analysed the various policy and strategy documents to understand what the policy was and by what strategy it was intended to be achieved. If weaknesses in the strategy for the implementation of the policy were later exposed, that does not mean that that was not the strategy, but only that it proved to be deficient. It is no less likely that import restrictions were imposed in pursuit of a mistaken strategy than it is that they were imposed because of a mistaken residual distrust of Australia.

113    Brett Cattle’s sixth contention on causation at trial (quoted at [420]) was that, given the role of imports in achieving self-sufficiency in beef, the Blueprint and other policy documents published by the Indonesian Government before the making of the Second Control Order, did not refer to reducing or restricting imports of live cattle to Indonesia in the short-term as a means to achieving self-sufficiency, but instead included programs directed to increasing the size and productivity of the domestic herd in order to achieve a gradual and proportionate reduction in the reliance on imports over time. Brett Cattle maintains that contention on appeal, submitting that the primary judge erred in rejecting it (T17:8-9).

114    Brett Cattle’s submissions in that regard should be rejected. As submitted by the respondent, the Blueprint, the 2010 Strategic Plan and the Guide are replete with references to controlling, restricting and reducing imports. Some of those references were identified by the primary judge, for example at [102], [104], [105], [106]-[107], [122], [138], [139] and [145]-[146]. Further, Brett Cattle’s own expert witnesses confirmed that the Blueprint required the reduction of imports, and it opened its case on the basis that the 2014 BSSP provided targets for decreasing beef cattle imports so that they comprised only 10% of domestic consumption needs. Similarly, Dr Krisnamurthi’s evidence was that the Indonesian Government “always regulate[s] imports” including by reducing the numbers of imports.

115    Brett Cattle also submits that part of the primary judge’s finding on its seventh contention in relation to causation at trial is erroneous. The seventh contention was that “the policies that were in place regarding food security and self-sufficiency in Indonesia before the Second Control Order were designed to achieve a balance between the competing and overlapping considerations of, on the one hand, the need for the Indonesian [G]overnment to ensure that there was an adequate and affordable supply of essential food products for the growing population of Indonesia, and on the other hand, the desire to increase Indonesia’s self-sufficiency in the production of those essential food products (such as beef) in order to reduce Indonesia’s reliance on imports” (at [441]). While holding that the seventh contention was “not incorrect”, the primary judge held that “it provides an incomplete account of the considerations which informed Indonesia’s food security and self-sufficiency policies and objectives” and that, in particular, “beef self-sufficiency was aimed at broad reform and improvement of Indonesia’s agricultural sector” and “sought to improve farmers’ welfare and income, including by lowering imports with a view to improving farmers’ income through beef prices” (at [442], emphasis added). Brett Cattle contends that the italicised portion of that finding is erroneous.

116    Insofar as Brett Cattle’s complaint is that the primary judge gave too much emphasis to the restriction of imports relative to other strategies to achieve the policy of improving farmers’ welfare and income, that must be rejected. The primary judge did not find that one single strategy took preference over others, and for the reasons already canvassed in relation to the sixth contention, the identified strategies certainly “include[ed]” lowering the level of imports. There is no error in the primary judge’s conclusions with regard to the seventh contention.

117    For those reasons, grounds 1, 2 and 3 must be rejected.

Ground 5: Indonesia’s intention had been to continue importing at least 500,000 head

118    By ground 5, Brett Cattle avers that the primary judge erred in rejecting (at [438]-[439]) its contention at trial that before the Second Control Order, the Indonesian Government’s pursuit of self-sufficiency was not planned to involve any reduction or restriction of import quotas (at least in the short term), but rather quotas were expected to be maintained at the level of around 500,000 head of cattle per year, and the increasing demand for beef in Indonesia was hoped to be met through increased production from the domestic herd. This is referred to as the Quota Plans Contention.

119    Ground 5 seeks to build on ground 3, and is undermined by the rejection of ground 3. That is because, for the reasons given above, the primary judge was correct to find that an objective of relevant Government policy was to support farmer welfare by maintaining attractive prices and that one of the identified ways of doing that was to restrict imports. Ground 5 is also undermined by Brett Cattle’s abandonment of ground 4 and hence its acceptance that its contention at trial that it was necessary to maintain the importation of live cattle at 500,000 head per annum in order to satisfy demand and keep prices stable was not made out – as found by the primary judge (at [440]).

120    The primary judge concluded that the Quota Plans Contention is not supported by any contemporaneous documentary evidence, is contradicted by much contemporaneous documentary evidence and the events, and must be rejected (at [439]). For the reasons that follow, there is no error in that conclusion.

121    It is most convenient to address ground 5 by identifying each of the six reasons given by Brett Cattle in support of it.

122    The first reason proffered by Brett Cattle is that the finding rejecting the Quota Plans Contention gave no or insufficient weight to the fact (said to have been accepted by the primary judge by his Honour’s acceptance of Brett Cattle’s “fifth contention” at trial, recorded at [420]) that imports of live “feeder” cattle were necessary to meet consumption needs, and imports of “breeder” cattle were necessary to achieve a desired increase in Indonesia’s cattle population. At [430], the primary judge recognized that imports of live cattle were necessary both to meet consumption needs (feeders) and to achieve a desired increase in Indonesia’s cattle population (breeders). His Honour quoted from Dr Krisnamurthi’s evidence that there was a plan to import more “breeding cattle” because of the need to increase the population of Indonesian breeding livestock.

123    Brett Cattle’s proffered first reason thus goes nowhere. It is said that insufficient weight was given to this consideration, but his Honour expressly gave it some weight and it is not said what weight should have been given to it or what difference that would or could have made to the ultimate decision.

124    As Brett Cattle accepts, its second reason falls away in light of the abandonment of ground 4 (T30:45).

125    Brett Cattle’s third reason is the submission that the primary judge failed to give any or sufficient weight to the 2010 Policy Paper or Brett Cattle’s submissions about it (summarised at [427]). In short, Brett Cattle’s point about the matters emphasised in the 2010 Policy Paper is that they reinforced the need for the balancing exercise mandated by the Blueprint, the fulfilment of which would not have enabled a reduction in imports below 500,000 per annum in the shorter term. The 2010 Policy Paper is said to have emphasised: the importance of beef protein as an “agent of development”; the inconsistent availability of locally produced beef; the need to import beef “to meet excess demand so that the highest price (ceiling price) can be afforded by the public”; and the danger that imposing an “increase of 5% in cattle import tariffs in the short term could lead to [domestic] livestock depletion”. Instead, it is said that the primary judge irrelevantly observed that the paper was published almost a year after, and was not a revision of, the Blueprint and that it did not suggest that strategies being implemented in the Blueprint should be abandoned (at [428]). It is further said that his Honour cited other passages of the paper that are not inconsistent with the Quota Plans Contention (at [429]).

126    The primary judge undertook a detailed analysis of the 2010 Policy Paper (at [303]-[313] and [427]-[429]). Brett Cattle’s point amounts to essentially a reassertion of the submissions made at trial which the primary judge set out (at [427]). Those submissions were not accepted as supporting the Quota Plans Contention because, as recorded in the Blueprint in a passage referred to by the primary judge (at [428]), the 2010 Policy Paper was issued to complement or support existing policies rather than to revise or amend them. The point is made even clearer in the foreword to the 2010 Policy Paper itself where it is explained that the Blueprint “is not operational enough” and that the policy paper is intended to “provide a bridge between the 2014 BSSP Blue Print and more operational policies and programs”. The point made by the primary judge was relevant because, as found by his Honour (at [426]), a reduction in imports was a key part of the design of the 2014 BSSP which was evidenced by the implementation of that aspect of the strategy beginning immediately in January 2010. That finding is challenged in the appeal by ground 2, but in light of the rejection of that ground the finding stands. In those circumstances, the criticism of the primary judge’s reasoning on the basis that he failed to give any or proper weight to the 2010 Policy Paper must fail.

127    In any event, as canvassed by the primary judge (particularly at [311]), the 2010 Policy Paper expressly suggested policies “on market, import tariffs and interest rates” that would have the effect of reducing beef imports. The “market” policies included significantly increasing the use of artificial insemination. The suggestion with regard to import tariffs was that they could be gradually increased, acknowledging the point made by Brett Cattle that an “increase of 5% in cattle import tariffs in the short term could lead to [domestic] livestock depletion”. In short, the 2010 Policy Paper does not support the Quota Plans Contention.

128    Brett Cattle’s fourth reason is that the primary judge did not properly consider or give sufficient weight to the evidence of Dr Krisnamurthi which it is said supported the Quota Plans Contention. In its written submissions, Brett Cattle specifically refers to the following four passages of Dr Krisnamurthi’s evidence.

129    First, with reference to the 2014 BSSP, Dr Krisnamurthi was asked whether imports of beef from Australia played any role in the Indonesian Government’s self-sufficiency policies for beef. Dr Krisnamurthi’s answer was yes – before self-sufficiency was achieved there would have to be imports to fill the gap between the domestic demand for and supply of beef (ie feeders and boxed beef) and to increase domestic production (ie breeders). That evidence was expressly referred to by the primary judge (at [430]). In oral submissions, Brett Cattle also refers to Dr Krisnamurthi’s explanation that a 350 kg maximum weight limit on the importation of Australian cattle was introduced in 2010 so that they could be fattened in Indonesia to add value in the domestic economy (T27:7-10; 31:4-5).

130    Secondly, Dr Krisnamurthi was asked what role breeding cattle had in the implementation of the self-sufficiency policy. Dr Krisnamurthi’s answer was that the importation of breeding cattle was needed to increase the population of Indonesian livestock (ie the importation of breeder cattle). That evidence was quoted by the primary judge (at [430]).

131    Thirdly, Dr Krisnamurthi was asked whether, prior to the Second Control Order when he was the Vice-Minister of Agriculture, he had ever considered reducing the importation quota as a means of pursuing self-sufficiency. Dr Krisnamurthi did not answer the question. In an answer that is hard to follow, he said in relation to the increase of domestic demand arising from population and economic growth, that “the more realistic way of approaching the import quota is to maintain the numbers”. He said that “probably for some times, we cannot or will not reduce it”. When asked what numbers he was referring to, he said “[a]bout 500,000”. That evidence was quoted by the primary judge (at [432]).

132    Fourthly, Dr Krisnamurthi gave evidence that even after the census showed that the domestic herd was 14.8 million (ie the target in the Blueprint had been reached), “[t]here is details – technical details that need to be considered, and that’s why we still have the importations, even though now we change the portfolio of importations from mainly the live cattle becoming more on – as a balance between live cattle and beef box”. That evidence was not referred to by the primary judge.

133    In its oral submissions, Brett Cattle refers to further passages of Dr Krisnamurthi’s evidence (T23:35-28:35; 31:4-15). In those passages, Dr Krisnamurthi accepted that the Blueprint anticipated there would be a need for regulations and policies to reduce beef imports. He accepted that it was part of the design of the program that there would be a fall in the import numbers for both feeder cattle and boxed beef with a corresponding increase in local production in each year from 2011 through 2014. He said that those reductions were “what we [were] hoping for”. However, he said that what occurred would depend, “in the final result, on the result of the census to be conducted, or the data collection in 2011”. He explained that whether the reducing targets in the Blueprint could be achieved depended on “the success of the program” and on “many factors”.

134    None of those extracts from the evidence of Dr Krisnamurthi establishes the Quota Plans Contention. To the contrary, aspects of that evidence directly contradict that contention, in particular Dr Krisnamurthi’s acceptance that the Blueprint envisaged the reduction of imports year-on-year. His qualification that that depended on the outcome of the census goes nowhere because that outcome supported further reductions. The primary judge dealt with these aspects comprehensively (in particular at [431]-[439]), and without any evident error. His Honour was justified in observing that Dr Krisnamurthi’s evidence in support of maintaining import numbers at 500,000 head per annum was contradicted by his evidence that the design of the program was for a fall in feeder cattle and boxed beef imports, and an increase in domestic production, with total imports reducing each year from 2011 through 2014 (at [437]).

135    Brett Cattle’s fifth reason in support of ground 5 is that the primary judge’s rejection of the Quota Plans Contention with reference to the consideration that Indonesia did not have a “policy” of maintaining imports at 500,000 head of cattle in the years 2010-2013 is irrelevant because the contention was not that there was such a “policy” but that, as a matter of fact, before the Second Control Order, the Indonesian Government “expected” imports to remain at around 500,000 per year in the coming years. Brett Cattle also submits that the primary judge incorrectly implied that Dr Krisnamurthi’s evidence was that Indonesia had a “policy” of maintaining imports at 500,000, which his Honour considered to be inconsistent with other evidence and relevant policy documents, but that Dr Krisnamurthi gave no evidence about the existence of such a “policy”.

136    The second criticism demonstrates the fallacy of the first. Indeed, Dr Krisnamurthi gave no evidence of a “policy” of maintaining imports at 500,000 head per annum. His evidence was that the policy was to reduce imports year-on-year, but the success of that being achieved depended on various factors including the 2011 census results. He expressed some expectation, which was not made clear as being anything more than his own, that maintaining imports at 500,000 head per annum was “more realistic”. That was not expressed to be a “plan” held at the time, it was not recorded in any contemporaneous documents and it was contrary to the express policy. The fact that Dr Krisnamurthi, and even others, may have suspected the policy to be unrealistic does not establish that there was actually a Government “plan”, or even expectation, to maintain imports at a level contrary to the policy.

137    The sixth and final reason advanced by Brett Cattle in support of ground 5 is the submission that the primary judge erroneously observed that the maintenance of imports of 500,000 head per annum was inconsistent with what occurred after the publication of the Blueprint in January 2010 but before the Second Control Order. In particular, Brett Cattle submits that before the Second Control Order the Indonesian Government announced that it would allow 452,000 cattle to be imported in 2010, but in fact it allowed 514,935 cattle to be imported that year. It later announced that the 2011 quota would be 500,000, which may then have allowed for a greater number of imports having regard to the flexibility shown in the previous year. Brett Cattle submits that those actions were consistent with the Quota Plans Contention.

138    The facts on which Brett Cattle relies with regard to the informal quota in 2010 and the actual imports that year, and the quota for 2011, do not detract from the central observation by the primary judge that live cattle imports were significantly reducing following the peak in 2009 and the revitalised push for self-sufficiency commencing in early 2010. The informal quota for 2010 was very substantially less than the actual imports in 2009. Then, the quota for 2011 was substantially less than the actual imports in 2010. That was concrete evidence of the Indonesian Government’s decisions that actually reduced imports year-on-year, quite contrary to the Quota Plans Contention that the “plan” (or expectation) prior to the Second Control Order was that imports would be maintained at about 500,000 year-on-year. There is no error in that reasoning of the primary judge.

139    In oral submissions, Brett Cattle places particular reliance on a DFAT cable reporting on a visit by Indonesian agriculture officials to Melbourne in February 2011 where they met with Australian officials to discuss live cattle and boxed beef trade issues (dealt with by the primary judge at [170]). The cable recorded that Director-General Prabowo’s special advisor, Agus Heriyanto, reminded the Australian officials that the 500,000 head limit for live cattle in 2011 would be reviewed mid-year “and he volunteered that it was possible that the limit may go as high as 650,000 head if market conditions indicated the need for that level of imports”. In truth, such an off-hand speculative comment from the Director-General’s special advisor carries little evidential value. In particular, it does not support that there was a firm Governmental “plan”, or even expectation, to maintain imports at 500,000 head per annum.

140    In the circumstances, ground 5 fails.

141    The remaining grounds of appeal deal with events after the imposition of the Second Control Order.

Grounds 6 and 7: A profound and enduring loss of trust in Australia

Ground 6

142    Ground 6 asserts that the primary judge erroneously concluded that the Indonesian Government would have “realised relatively quickly that the Second Control Order was unlikely to last for six months” (at [214]). This finding is challenged despite the primary judge expressly acknowledging in the same sentence that “such an outcome remained possible until it was repealed”.

143    The basis of the ground is asserted to be that there was no, or alternatively insufficient, evidence to support the alleged erroneous finding. Brett Cattle submits that the primary judge should have concluded that the Indonesian Government could not predict the likelihood of the Second Control Order being repealed before the end of its six-month term.

144    In oral submissions, Brett Cattle asserts that if ground 6 is upheld it would have the following consequential findings:

(a)    the possibility of the ban remaining in place for an extended period was alive for Indonesia until agreement was reached in early July (presumably a reference to the lifting of the ban in July 2011 once the ESCAS was introduced);

(b)    this meant that for almost a month (being from the making of the Second Control Order on 7 June 2011 to 6 July 2011), Indonesia was facing a real possibility of a loss of access to live cattle exports from Australia for a period of up to six months; and

(c)    this led to Minister Suswono and Dr Krisnamurthi’s loss of trust in Australia as a source of supply, which continued at all relevant times.

145    In oral submissions, Brett Cattle says that if by the phrase “relatively quickly” (at [214]), the primary judge meant “shortly before the Second Control Order was revoked on 7 July 2011”, there would be “no difficulties”, but that the primary judge seems to be suggesting “it would have been at a much earlier point” (T41.21-25). Counsel for Brett Cattle submits that when considering a loss of trust in a foreign country as a supplier, a matter of weeks can contribute to securing the loss of trust; or put another way, can increase the entrenchment of the loss of trust. Counsel developed this further by reference to issues related to substituting the live cattle trade with boxed beef in Indonesia (partly in response to submissions by the Minister). This is not a pathway of reasoning explored before the primary judge. We are not satisfied there is substance to the submission that the primary judge did not adequately appreciate the potential or actual effect of a delay of some weeks in the Indonesian Government realising the ban would not be in place for six months as a result of the circumstances of the Second Control Order, as opposed to the Exceptions Order, scenario.

146    Brett Cattle asserts that the conclusion at [214], said to be a “passing observation” by the primary judge, greatly underestimated the depth of concern that the Second Control Order caused within the Indonesian Government. That contention ignores the wealth of evidence that was cited by the primary judge and which supports the finding at [214], which includes the following:

(a)    On 7 June 2011, as recorded in an email from Deputy Secretary Glyde (of the Department of Agriculture, Fisheries and Forestry (DAFF)) to other members of DAFF, Australia’s ambassador to Indonesia, Greg Moriarty, met with the Indonesian Vice-Minister for Agriculture, Dr Krisnamurthi (at [194]). This meeting occurred before the Minister, Senator the Honourable Joseph Ludwig, telephoned Minister Suswono at 5:00 pm on 7 June 2011 and advised him of the temporary suspension of imports from the next day (at [197]). The email, which is quoted in full at [194], records as positives from the meeting that the Indonesians “were very committed to working together quickly to get abattoirs accredited” and that Dr Krisnamurthi wanted “Australian officials on the ground within the next ten days”.

(b)    A further DFAT cable on 7 June 2011 also reported on the meeting between Mr Moriarty (and others) and Dr Krisnamurthi regarding the Second Control Order. The primary judgment discusses the cable at [195]-[196]. The cable recorded that “Indonesia clearly want[ed] quick action to have some abattoirs recognised as meeting the appropriate standards and then, in their view, be eligible to receive Australian cattle. The cable also recorded that the Australian officials said the “suspension would remain in place as long as it took to make improvements” and while indicating a willingness to cooperate and deploy technical assistance, more time might be required to establish adequate standards and assurance arrangements. The cable cautioned that “[t]here will be further negative reactions if Indonesia comes to the view that a resumption of even limited trade will take months rather than weeks”.

(c)    On 8 June 2011, Minister Ludwig made an announcement which confirmed that, while the Second Control Order was valid for six months, the Australian Government had been clear that it was committed to working with the Indonesian Government to re-open the Indonesian market for Australian exporters as soon as possible (at [201]).

(d)    On 8 June 2011, a DFAT cable recorded the Indonesian media reports as being balanced thanks to constructive comments by Indonesian ministers, including the Trade Minister Mari Pangestu stressing to journalists that the Second Control Order represented a “temporary suspension” (at [203]).

(e)    The primary judge found (which is not challenged) that the evidence was clear that there was sufficient supply of beef for the Ramadan period and that Indonesia wanted the live cattle trade to reopen as quickly as possible (at [223]). This was also made clear by subsequent events, including the import permits issued immediately after the ban was lifted (at [223]).

(f)    On 16 June 2011, Minister Emerson, the Australian Minister for Trade spoke with Minister Pangestu, as recorded in a DFAT “Record of Conversation” (at [225]-[227]). Dr Emerson noted that the interim suspension was for six months but said the intention was to resume trade more quickly than that. There was no obligation to suspend trade for this entire period.

(g)    In the briefing pack provided to Minister Ludwig for his visit to Indonesia from 19 to 21 June 2011, the section headed “Handling Note”, which concerned the Vice-Minister for Trade, Minister Mahendra Siregar, stated that the Ministry for Trade was focused on re-starting the live trade as soon as possible, and was working hard to keep the focus on technical and trade issues (at [230]).

(h)    The same briefing pack, under the “talking points” for meetings sections in respect of various Indonesian Ministers, emphasised that the Australian Government was very committed to recommencing the trade in live animals to Indonesia and that the main priority for both the Australian Government and the industry was to work cooperatively with Indonesia to ensure the trade is reopened as quickly as possible, with appropriate animal welfare standards in place (at [231]).

(i)    On 20 June 2011, Minister Ludwig met with the Minister Suswono, Minister Pangestu and Minister Siregar. A DFAT cable dated 21 June 2011 recorded Minister Ludwig emphasising in meetings with Indonesian ministers that Australia wanted to reopen trade as quickly as possible and find ways to work with Indonesia to overcome difficulties together (at [234]).

(j)    A 29 June 2011, a briefing note from DAFF for the Solomon Community Cabinet in the Northern Territory recorded that the Australian Government was working with the Indonesian Government and Australian industry to resume the live cattle trade to Indonesia as quickly as possible (at [247]).

(k)    The primary judge also relied on the fact that the import permits for live cattle were issued as soon as the ban was lifted: “on 8 July 2011, the Indonesian Government announced that it would issue import permits for the import of 180,000 head of cattle for the third quarter of 2011” (at [262]).

(l)    On 9 August 2011, Indonesian Minister Hatta Rajasa wrote to the Australian Foreign Minister Kevin Rudd stating that Minister Rudd’s recent visit to Jakarta (in July 2011) was very productive and that fruitful discussions had taken place with Minister Rajasa and his colleagues. Minister Rajasa said that the Indonesian Government had approved import permits that allow 180,000 head of cattle from Australia with the lifting of the ban (at [268]).

(m)    Indonesia issued a further 172,500 import permits in respect of the fourth quarter of 2011 (at [485]).

(n)    The primary judge said that Australia and Indonesia had a long and strong relationship, both Australia and Indonesia had made substantial efforts to repair the tensions caused by the making of the Second Control Order, and that “[a]ll other things being equal, and recognising that grudges are capable of being held for long periods of time, retaliatory action might have been more likely to occur closer to the offending event rather than some 18 months or 2½ years later” (at [485]).

(o)    The primary judge summarised the position at the time the Indonesian Government set the 2012 quota as follows (at [500]):

[O]nce the Second Control Order was lifted, the immediate step taken was to issue large numbers of import permits for the third and fourth quarters of 2011 ... By late 2011, tensions between Australia and Indonesia in respect of the live cattle trade had eased from levels seen in the weeks immediately after the Second Control Order. That is not to say that no resentments or tension remained, but the situation was quite different with good relations between Australia and Indonesia essentially restored. At that time, the Indonesian government would not have considered the prospect of another ban as realistic. Indonesia knew that the live cattle trade was important to Australia and that Australia wanted that trade to continue. Given the events which had just transpired, and the resolution of them in a way which significantly improved animal welfare in Indonesia, the prospect of a further ban was minimal.

(Emphasis added.)

147    Against the weight of the evidence and findings referred to above, Brett Cattle points to two documents, both dated a few days after the Second Control Order was made, which expressed some doubt as to when the live cattle trade would resume.

148    The first is a DFAT cable dated 9 June 2011 (discussed at [205]), which records Australia’s Head of Mission in Indonesia saying to the Indonesian Cabinet Secretary Dipo Alam that it was “unrealistic” to expect that some export trade would recommence in ten days and that “the issue may take some time to resolve”. Brett Cattle refers to statements made by Minister Emerson (discussed at [146(f)] above) and submits that there is no reason to think the Indonesian Government would have put more store in the Australian Trade Minister’s indications than the indications from Australian diplomats, let alone from the Minister who had issued the ban.

149    The second is a letter from Minister Ludwig to Indonesia’s Minister Suswono dated 12 June 2011 (discussed at [218]), which indicated that the suspension of exports of cattle to Indonesia would continue “until we are confident that acceptable animal welfare standards can be guaranteed” and that developing a system for “absolute supply chain assurance” to achieve this “may take some time”. Brett Cattle submits that this supports the finding it asserts the primary judge should have made that the Australian Government’s position was that until Australia was completely satisfied that animal safety or proper treatment was guaranteed, it would not reopen the trade.

150    But that is to take those two documents out of context and to ignore the significant, high-level diplomacy that was undertaken by the Australian and Indonesian Governments immediately after the making of the Second Control Order and which was referred to in detail by the primary judge. The documents dated 9 June 2011 and 12 June 2011, relied upon by Brett Cattle, were expressly referred to and considered by the primary judge (at [205] and [218]).

151    The evidence relied upon by the primary judge provides a sound foundation for the conclusion at [214] that the Indonesian Government would have “realised relatively quickly that the Second Control Order was unlikely to last for six months”, despite acknowledging that “such an outcome remained possible until it was repealed”. Brett Cattle has not established any error of the primary judge in this finding.

152    It follows that ground 6 has not been made out.

Ground 7

153    Ground 7 contends that the primary judge was wrong in implicitly rejecting the contention that “even after the Second Control Order was lifted in July 2011, members of the Indonesian Government considered that there was an ongoing risk that the Australian Government could again ban the export of live cattle to Indonesia in the future, particularly given the lack of prior notice and consultation with the Indonesian Government before the Minister made the Second Control Order in June 2011” (at [449]-[450]). Brett Cattle contends that the primary judge was wrong to find that “it is likely that any early concern about a future ban diminished rapidly” (at [450]) and by further finding that by late 2011 “the Indonesian Government would not have considered the prospect of another ban realistic” (at [500]). As with ground 6, Brett Cattle argues these findings by the primary judge greatly underestimated the depth of concern that the Second Control Order caused within the Indonesian Government.

154    The basis for the alleged error in ground 7 is that the primary judge:

(a)    placed excessive weight on the finding that Indonesia knew that the live cattle trade was important to Australia and that Australia wanted trade to continue (at [500]);

(b)    placed insufficient weight on:

(i)    the consideration that the Second Control Order had been made despite the importance of the cattle trade to some participants in the Australian economy;

(ii)    the risk that public pressure unconnected with the cattle industry could be applied to cause the Australian Government to ban live cattle exports again in the future; and

(iii)    the consideration that the Second Control Order (and its imposition without prior warning) would have caused a heightened perception of such a risk within the Indonesian Government.

155    Brett Cattle’s argument can be synthesised as asserting that, on a proper consideration and weighing of the evidence, the primary judge should have arrived at the conclusion that senior officials within the Indonesian Government had an enduring and significant loss of trust in Australia as a reliable supplier because of the risk of future export bans imposed without notice or consultation, and that these sentiments did not rapidly dissipate. The consequence alleged is that if such a finding had been made, it would have led to a finding that this loss of trust motivated (in the sense of a being a material cause) the quota decisions for 2012 and 2013 (and the related rigidity in those decisions). Brett Cattle relies primarily on the evidence of Dr Krisnamurthi and Mr Adiwoso, as well as documentary evidence including that considered in relation to ground 6. In particular, Brett Cattle says there was no reason not to accept the unchallenged evidence of Dr Krisnamurthi on these matters in its entirety given his very senior position as a presidentially-appointed cabinet minister whose portfolio at the relevant time covered cattle imports, and given there was no adverse suggestion about the credibility of his evidence.

156    Ground 7 ignores the path of reasoning of the primary judge in arriving at the challenged findings. It ignores the contemporaneous documentary and oral evidence that was weighed and considered by the primary judge as to what factors the Indonesian Government took into account when setting quotas and issuing import permits in the third and fourth quarters of 2011. The primary judge took into account and weighed the following factors in making the findings which he made at [449] and [450]:

(a)    Contrary to Brett Cattle’s submission, the primary judge did consider and weigh the evidence of Dr Krisnamurthi about the Indonesian Government’s priorities in the aftermath of the Second Control Order. Dr Krisnamurthi said that the Indonesian Government’s strategic approach was “to try to diversify our supply, and of course, learning from the prior assessment that importations of live cattle from country outside Australia is inefficient … and much more expensive than Australia” (at [297]).

(b)    The primary judge did not accept Dr Krisnamurthi’s evidence that he recalled the decision was made to reduce the live cattle quota for 2012 because a decision had been made to “diversify” to more boxed meat; this evidence was inconsistent with the decrease in boxed beef imports in 2012 (compared to 2011) (at [300]).

(c)    When setting quotas and issuing import permits, the Indonesian Government considered the projected domestic demand and meeting the self-sufficiency goals in the Blueprint such that Indonesia could supply 80% of the presumed demand (at [316]-[318]).

(d)    In setting quotas, the Indonesian Government had regard to coordinate efforts to stabilise the price of beef whilst evaluating the overall stock of beef against consumption rates and addressing the goal of self-sufficiency (at [357]).

(e)    The Ministry of Agriculture would, in 2013, lower total beef imports to 80,000 tonnes from 85,000 tonnes in 2012. The Ministry of Agriculture allowed adequate supply to enter the market in January 2013 in order to stabilise beef prices (at [359]).

(f)    The Indonesian Government was concerned about the impact of rising beef prices and whether to increase the quota of live cattle imports, but they needed to have a compelling answer to bring Agriculture Minister Suswono around for whom reduced imports was a political necessity (at [360]).

(g)    Agriculture Minister Suswono was arguing against more imports, stating the need for self-sufficiency. Minister Suswono’s priority was protection of the farmers short-term interests, in line with the politics of the PKS party, which had a disproportionate influence over agriculture policy in Indonesia (at [361]). There was heightened sensitivity because Minister Suswono had declared success on beef “self-sufficiency”, but the reality was that high prices were constraining demand and increasing the relative attractiveness of alternative protein sources such as chicken, fish and soy. The breeding herd had been slaughtered to meet demand, making the task of achieving “self-sufficiency” more difficult in future years (at [363]). Indonesia agreed that the increased beef prices in Indonesia were not due to Australian cattle prices and asserted that it was also not due to import restrictions, but the main reason was market supply mechanisms in Indonesia. Indonesia noted that the annual import allocation was determined by Indonesia’s Ministries of Agriculture, Trade and Industry and was coordinated by the Ministry of the Economy. The Ministry of Agriculture was one party in a joint decision-making process. Indonesia confirmed that the annual allocation level was set to fill the gap between its supply and domestic demand (at [364]).

(h)    The final decision on a quota for 2013 would be based on a recalculation of national demand. The questions of high prices and an increase in demand for beef in Indonesia would be taken into consideration and a decision might be made on whether the quota should be increased or remain at 80,000 tonnes for the time being (at [367]).

(i)    A DFAT cable sent on 14 December 2012 reported on the possibility that the quota would be increased. The cable referred to discussions with the President’s Special Advisor on Food Security who observed that “Indonesia needed to look after consumers as well as farmers” but that “35 percent of Indonesia’s working population were farmers and a large proportion of them were living under the poverty line”, which meant “that, politically, it was very difficult to increase the import quota on beef and cattle, as the government needed to be seen to protect farmers interests” (at [369]).

(j)    A DFAT cable sent on 21 December 2012 reported that “Indonesia[n] beef import quotas are the subject of active internal debate, but no change to the allocations has been agreed” (at [370]).

157    Properly understood, the above evidence considered and relied upon by the primary judge negates the contention that the Indonesian Government considered that there was an ongoing risk that the Australian Government could again ban the export of live cattle to Indonesia in the future.

158    Brett Cattle argues that the primary judge placed excessive weight on the consideration that “such a concern finds no significant support in the contemporaneous documents” (at [450]). Brett Cattle submits that the primary judge should have weighed the evidence according to the proof which it was within the power of one side to have produced and the other side to have contradicted, pursuant to the entrenched principle in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. In that regard, Brett Cattle submits that once the Second Control Order was lifted, it would not reasonably be expected that documents – except potentially internal Indonesian Government documents – would record ongoing concerns on the part of members of the Indonesian Government about future bans and as the Indonesian Government is not susceptible to the compulsory processes of an Australian court, Brett Cattle did not have access to internal Indonesian Government documents. The Minister’s response to this submission is that there was no disparity in the parties’ ability to call evidence, and the Blatch v Archer principle cannot be used to fill gaps in the evidence nor to convert conjecture into inference: GMS24 v Commonwealth [2025] FCAFC 170; 313 FCR 152 at [72] per Kennett J and [152] per Horan and Bennett JJ. The point travels nowhere because, as the Minister submits, neither party was in a position to call for internal Indonesian Government documents; the principle from Blatch v Archer does not apply.

159    The evidence demonstrates that after the making of the Second Control Order, the Governments of Indonesia and Australia embarked upon high level diplomacy to resolve the interim suspension of live cattle imports as quickly as possible. That involved the Indonesian Government considering its priorities which included diversity of supply; the price advantage of live cattle from Australia compared to other countries; the self-sufficiency goals in the Blueprint; the stabilisation of the price of beef whilst evaluating the overall stock of beef against consumption rates, and the politics that underpinned the fixing of import quotas for beef, and the interests of Indonesian farmers. The evidence referred to and considered by the primary judge dealt with each of these matters and negates the contention that the Indonesian Government considered that there was an ongoing risk that the Australian Government could again ban the export of live cattle to Indonesia in the future. Brett Cattle has not established any error in the reasoning and findings made by the primary judge at [449]-[450] and [500].

160    Separately to its Blatch v Archer submission, Brett Cattle contends, in effect, that the findings by the primary judge as to whether the quotas were materially affected by ongoing concerns on the part of the Indonesian Government about the reliability of Australian beef supply should have had regard to the lack of access to the records of the Indonesian Government. It was said that the lack of access to those documents explained the absence of references to such concerns in the documents that were in evidence, which were mostly Australian Government documents. Therefore, the primary judge should have approached the documentary evidence on that basis.

161    As to that contention, the evidence as a whole reveals extensive diplomatic engagement with senior officials in the Indonesian Government in relation to matters relating to beef imports. The establishment of lower beef quotas based on ongoing concerns about the reliability of beef supply from Australia would be a significant change in policy. The record is replete with detailed diplomatic communications recording meetings with senior officials where Indonesian Government policy concerning beef production and importation as well as its motivations and political influences is discussed. There is no reason to conclude that a policy change of the kind contended for by Brett Cattle would not be communicated through usual diplomatic channels, especially given that Brett Cattle disavowed any form of retaliation as an explanation for the quotas. Therefore, it was appropriate to approach that record as a reliable basis upon which to reach conclusions as to the policy reasons for the level of quotas set by the Indonesian Government. There was no error by the primary judge in the approach to the nature of the available documentary record when it came to reaching a conclusion as to the operative reasons for the level of the quotas.

162    It follows that ground 7 has not been made out.

Grounds 8 and 9: The 2011 cattle census was not of central importance in setting the 2012 quota

Ground 8

163    In 2011, the Indonesian Government conducted a special census of the domestic cattle herd as at 1 June, the initial results of which became available in July 2011 and indicated that there were 14.43 million cattle (excluding buffalo) in Indonesia (at [254]). As mentioned, the final results in November 2011 were that there were 14.8 million head of beef cattle (ie excluding dairy cattle and buffalo) (at [294]).

164    Ground 8 contends that the primary judge was wrong to find that the 2011 census “was an important consideration in setting the quota for 2012” (at [474]) and “must have been a matter which was of central importance because it informed Indonesia’s expectations about what it could and would produce domestically” (at [476]). Brett Cattle submits that this finding overstates the importance of the 2011 census in setting the 2012 quota.

165    Brett Cattle’s basis for the alleged error is that the primary judge overstated the importance of the census in setting the quota for 2012 in the light of the evidence, including in particular that of Dr Krisnamurthi referred to at [475]. Brett Cattle submits the primary judge should have found that the census was a reference used, but was not of central importance, in setting the beef cattle import quota for 2012.

166    Brett Cattle submits that the evidence demonstrates that the accuracy of the 2011 census was questionable and that it did not meaningfully cast light on the cattle readily available to cattle markets. Rather, Brett Cattle submits that the census was “simply a set of calculations” which tracked livestock populations. Counsel for Brett Cattle accepted that Indonesian officials relied on the census results on occasions to justify the low 2012 quota. However, counsel submits that this did not mean the census was the real operative reason for the quota setting, because explicit statements of distrust of an ally would not ordinarily appear in diplomatic communications.

167    Brett Cattle submits that the consequence of the alleged erroneous finding that the census was “of central importance” in setting the 2012 quota suggests that the Indonesian Government had a high degree of faith in and reliance on both the census’ accuracy and aptness for that task, in particular as to what the size of Indonesia’s cattle herd implied about its domestic beef production capacity. Brett Cattle submits that the alleged erroneous finding obviously informed the primary judge’s finding that the census results “would have been (and the evidence indicates that they were) interpreted as indicating that imports [of cattle] could be reduced” (at [477]). Brett Cattle submits that its asserted alternative finding that the census was merely “a reference” used in setting the 2012 quota does not carry those implications.

168    For the reasons that follow, there was no error by the primary judge in the reasoning and finding that the 2011 census was an important consideration in setting the quota for 2012.

169    First, Brett Cattle did not challenge the primary judge’s findings that:

(a)    the 2011 census was a thorough process which was planned and commenced well before the Second Control Order (at [114], [171], [177], and [212]);

(b)    the census had long been considered important to evaluate the success of Indonesia’s self-sufficiency program (at [113]-[114]); and

(c)    the results of the census revealed higher cattle numbers than expected and such results were available at the time of making the decisions on the 2012 quota (at [249], [254]-[256], noting the cable discussed in this paragraph stated “Prabowo said, with what appeared to be a heavy dose of wry humour, that this meant Indonesia had already reached its 2014 self-sufficiency goal”, [293] and [532]-[533]).

170    Second, the primary judge addressed Brett Cattle’s reliance on the evidence of Dr Krisnamurthi in seeking to diminish the causal significance of the census to the setting of the 2012 quota. The primary judge referred to and quoted from Dr Krisnamurthi’s evidence to the effect that the census results were only one matter which would inform, or be “a reference” point, for the quota (at [475]). As observed by the primary judge, in re-examination Dr Krisnamurthi confirmed that the census data was “one” of the reference points in setting the quota for 2012, but not the only reference point. As extracted by the primary judge, Dr Krisnamurthi explained:

Because we also have to see the development of the price in the market, as well as the input from the industries, the input from the supermarket, the retail industries, and so forth. So we try to look at the whole meat business as a whole, as a comprehensive thing. The population number is one of the aspects, but we need also to look at other aspect[s].

171    The primary judge was correct to find (as he did at [476]) that “there is no doubt that the census was only one matter which needed to be taken into account in setting the quota at the end of 2011 for the 2012 year”. The primary judge was also correct to find that “it must have been a matter which was of central importance because it informed Indonesia’s expectations about what it could and would produce domestically”. Those findings are supported by his Honour’s observations (at [476]) that the Blueprint assumed 12.61 million cattle in 2009 and forecast the most likely position to be 14.231 million cattle in 2014 which is the level at which beef self-sufficiency would be achieved. Further, by 4 July 2011 the preliminary results indicated that the Indonesian cattle population on 1 June 2011 numbered 14.43 million, excluding buffalo.

172    There was no error in the primary judge observing (at [477]) that, whilst it would no doubt depend on a number of other considerations, the census results would have been (and the evidence indicates that they were) interpreted as indicating that imports could be reduced.

173    Third, the primary judge did not accept that the evidence advanced by Brett Cattle established that the 2011 census was not an important consideration and that it was not of central importance to setting the 2012 quota (at [478]-[481]). This finding was open to the primary judge to make after considering and weighing the evidence.

174    Fourth, the primary judge found (at [482]) that the contemporaneous documents do not suggest that the Indonesian Government considered the results of the 2011 census to be anything other than accurate. The contemporaneous communications suggest that the Ministry of Agriculture considered the results to be sufficiently accurate to inform its decision-making and recommendations. The primary judge observed that having taken the position in January 2010 that the special census was an essential pre-requisite to the success of the 2014 BSSP, and having carried out the census at significant expense, it is unlikely that the government would have ignored the results of the census or treated it as other than reflecting a sufficiently accurate factual basis upon which to make further decisions implementing its 2014 BSSP.

175    The evidence specifically relied on by Brett Cattle (at [71] and [72] of its submissions and [34] of its reply submissions, expressly referred to by it in oral submissions at T79:20-30), which it says that the primary judge overlooked, does not alter those conclusions. We consider the evidence in the order in which Brett Cattle refers to it.

176    Dr Krisnamurthi’s evidence, as already dealt with, goes no further than saying that the census figures were not the only consideration in setting the import quotas.

177    Professor Malcolm’s evidence, which was referred to by the primary judge (at [480]-[481]), goes no further than to say that estimating national herds in any country is very difficult, he did not believe the census figures and that agricultural economists would be likely to know that census figures are unreliable but that he cannot speak for policy makers. None of that says anything probative of whether the people who made the relevant quota decisions relied on, or would have relied on, the census results.

178    Brett Cattle refers to a DFAT document titled “Live Cattle Trade” dated 16 July 2012 (discussed at [348]-[350]). It stated, without attribution, that it was “widely acknowledged” that the census result was “an unrealistic representation of the size of the domestic herd”. Not only was that six months after the 2012 quota was set, but it does not establish that the relevant decision-makers had the knowledge in question. Moreover, the same document goes on to state that the import quota had been reducing each year since the self-sufficiency policy was introduced and that then current quota for imports corresponded with the Blueprint. It also stated that the authors “understand” that the quota would be further reduced in 2013. None of that suggests that the census result was not a material consideration in setting the quotas, let alone that the Second Control Order was a material consideration.

179    Brett Cattle refers to a DFAT cable dated 26 June 2012 which reported that Indonesia’s Director General of Foreign Trade, Deddy Saleh, had said that although the 2011 census figure of 14 million head of cattle was “probably right”, “smallholder farmers were not motivated to sell on price because they kept cattle as a savings mechanism, and sent animals to slaughter based upon social drivers such as a daughter’s wedding” (discussed at [340]-[341]). Again, that was considered by the primary judge and it does not detract from his conclusion that the census results were a material consideration in setting the quotas.

180    Brett Cattle refers to a DFAT cable dated 5 July 2011 which reported that a statement made by Indonesia’s then Director-General of Livestock Services, Dr Prabowo Catarusso, that the initial 2011 census figures meant that Indonesia had already reached its 2014 self-sufficiency goal, was made with what appeared to the author of the cable to be “a heavy dose of wry humour”, signifying that Dr Prabowo did not genuinely believe self-sufficiency had been achieved. As mentioned, the primary quoted this passage (at [256]). This passing observation by someone who was not called as a witness, and the basis for which is not set out, does not detract from the cogent reasons for the conclusion that even though there may have been doubts about the reliability of the census results they were a material driver in the setting of the 2012 and 2013 import quotas.

181    Brett Cattle refers to an email dated 16 November 2011 from Bruce Wallner, Counsellor – Agriculture at the Australian Embassy in Jakarta, reporting on a meeting between himself and Dr Prabowo the previous day (quoted in its entirety by the primary judge at [296] and discussed above at [50]). Mr Wallner reported that he had asked Dr Prabowo “about likely cuts to [the beef] quota due to national herd census results” – suggesting that the Embassy officials expected there to be cuts in the quota because of the census results. In response, Dr Prabowo agreed the census results exceeded the self-sufficiency target set for 2014, but “that the problem was [the cattle] were spread out all over the archipelago and [it was] costly to transport to population centres”. Dr Prabowo then said the quotas were likely to be reduced for 2012 compared to 2011, but that it would be difficult for the various officials from three different ministries to agree. Self-evidently, that evidence does not support any finding that the census results were not a material driver in setting the 2012 import quota. Indeed, the opposite is true.

182    Brett Cattle refers to a DFAT cable dated 20 April 2012 which reported that the Ministry of Agriculture acknowledged, despite the 2011 census results pointing to there being sufficient domestic cattle to produce enough local beef to meet demand, that there were problems in distributing cattle and beef from remote provinces to the populous capital (set out at [333]). The cable does not suggest that it was thought by the Ministry that the answer to that problem was to increase the import quota. Indeed, it states that the Agriculture ministry had “maintained a consistent line through all recent meetings, pointing to the cattle census results”, expressing confidence that the domestic cattle herd was sufficient to produce enough local beef to meet demand. The cable goes nowhere in supporting the appeal point.

183    Brett Cattle refers to a DFAT cable dated 7 July 2011 which reported that at a particular meeting sometime previously Indonesian “officials had laughed and admitted that Indonesia had not actually met self-sufficiently goals” (extracted at [261] and discussed above at [42]). The same cable reported that Dr Prabowo had on 6 July “repeated to us that the quota for cattle and beef imports should be reduced in line with Indonesia’s self-sufficiency blueprint”. That is to say, despite the apparent attitude of the unidentified officials on a previous occasion, Dr Prabowo had maintained that the import quota would be reduced in line with the census results. That evidence is supportive of the primary judge’s relevant conclusion.

184    Brett Cattle has failed to establish any error in the reasoning and findings of the primary judge at [474] and [476].

185    For these reasons, ground 8 has not been made out.

Ground 9

186    Brett Cattle contends that the primary judge was wrong to find (at [477]), that the results of the 2011 census “would have been (and the evidence indicate that they were) interpreted as indicating that imports [of cattle] could be reduced”. There is significant overlap between grounds 8 and 9, which explains why Brett Cattle relies on the same evidence to advance ground 9 as it relies upon to advance ground 8. There is no error in the reasoning and the findings made by the primary judge at [477]. The primary judge did refer to the evidence that the Indonesian Government had made a concrete plan to conduct a census and that the size of the domestic herd (amongst other integers) would indicate whether imports could be reduced in line with the Blueprint (at [113]-[114], [140], [293], [482]-[483]).

187    For the reasons given, ground 9 has not been made out.

Disposition

188    The appeal should be dismissed with costs.

Associate:

Dated:    15 May 2026