Brett Cattle Pty Ltd v Minister for Agriculture (No 5)

[2025] FCA 597

FEDERAL COURT OF AUSTRALIA

Brett Cattle Pty Ltd v Minister for Agriculture (No 5) [2025] FCA 597

File number(s):

NSD 1102 of 2014

Judgment of:

THAWLEY J

Date of judgment:

5 June 2025

Catchwords:

REPRESENTATIVE PROCEEDINGS – separate question – where the Court (differently constituted) found liability for misfeasance in public office – where liability judge ordered separate question relevant to damage: how many live cattle would have been exported in 2012 and 2013 if a total ban with a power to grant exceptions (Exceptions Order) had been made instead of a total ban without such a power (Second Control Order) – where Second Control Order did not materially contribute to the decisions in relation to the level of Indonesia’s 2012 and 2013 import quotas, or the strictness of enforcement of those quotas – where, even if Second Control Order could be said to have been material, the position would have been no different if an Exceptions Order had been made instead of the Second Control Order – held: no additional live cattle would have been exported in 2012 and 2013 in the hypothetical scenario posed in the separate question

Legislation:

Evidence Act 1995 (Cth) ss 66A, 136

Federal Court of Australia Act 1976 (Cth) Pt IVA

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

559

Date of last submission/s:

9 May 2025

Date of hearing:

14 to 16, 22 to 23 and 28 to 30 April and 1 and 7 to 9 May 2025

Counsel for applicant:

Mr C Withers SC with Mr P Holmes and Ms N Gollan

Solicitor for applicant:

MinterEllison

Counsel for respondent:

Ms F McLeod SC and Ms Z Maud SC with Ms A Poukchanski, Ms M Jackson and Mr N Sinnathurai

Solicitor for respondent:

Australian Government Solicitor

 

ORDERS

NSD 1102 of 2014

BETWEEN:

BRETT CATTLE COMPANY PTY LTD

Applicant

AND:

SENATOR THE HONOURABLE JOE LUDWIG IN HIS CAPACITY AS THE FORMER MINISTER FOR AGRICULTURE, FISHERIES AND FORESTRY

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:	THAWLEY J
DATE OF ORDER:	5 JUNE 2025

THE COURT ORDERS THAT:

1.Subject to further order, these reasons for judgment not be published otherwise than to the parties before 4 pm on 10 June 2025.

2.By 4 pm on 6 June 2025, the Commonwealth is to notify the Court whether it wishes to make any application in respect of the publication of the Court’s reasons, identifying any redactions sought.

3.The parties confer by 5 pm on 18 June 2025 with a view to agreeing appropriate orders to give effect to these reasons for judgment and ancillary matters and inform the Court as soon as reasonably practicable thereafter of any consent position with respect to appropriate orders.

4.The proceedings be listed for a case management hearing at 9.30 am on 11 July 2025, with leave for interstate practitioners to appear by Microsoft Teams.

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

REASONS FOR JUDGMENT

INTRODUCTION	[1]
THE EVIDENCE	[23]
SUMMARY OF BRETT CATTLE’S CASE ON THE SEPARATE QUESTION	[36]
Narrowing of the Case in Closing Submissions	[36]
Summary of Submissions in relation 2012 and 2013	[40]
OVERVIEW OF THE ACTUAL NUMBERS OF LIVE CATTLE EXPORTS	[50]
THE FACTS	[64]
The Indonesian Legal System, Food Security and Beef Self-Sufficiency up until 2010	[66]
Indonesia’s Renewed Push Towards Beef Self-Sufficiency	[77]
The National RPJM	[84]
The Blueprint	[91]
The 2010 Strategic Plan	[117]
The Guide	[136]
Presidential Instruction Number 1 of 2010	[148]
The Impact on Australian Exports from 2010 until the Second Control Order	[151]
The Position Immediately before the Second Control Order	[190]
The Second Control Order	[194]
Indonesia’s Immediate Reaction to the Second Control Order	[199]
Oral Evidence concerning the Reaction to the Second Control Order	[206]
Events from 12 June 2011 until Repeal of the Second Control Order	[218]
Repeal of the Second Control Order	[259]
Events in July and August 2011 after the Repeal of the Second Control Order	[261]
Indonesian Regulations in September 2011	[271]
The Cattle Census Results – 1 November 2011	[293]
Consideration in November 2011 of the Quota for 2012	[296]
The 2010 Policy Paper	[303]
The Revised 2010 Strategic Plan – 2 December 2011	[314]
The Quota for 2012 Confirmed	[315]
Live Cattle and Boxed Beef Imports in 2011	[319]
Indonesian Domestic Production in 2011	[321]
Ministerial Visit to Indonesia on 21 and 22 March 2012	[322]
Consideration of Quota Increase – April to June 2012	[327]
President Yudhoyono’s Visit to Darwin – 2 to 4 July 2012	[344]
Revised Beef Self‑Sufficiency Blueprint –October 2012	[352]
Beef Cattle Statistics – November 2012	[354]
Law No 18 of 2012	[355]
Indonesian Consideration of the Quota for 2013	[357]
Live Cattle Imports in 2012	[373]
Quota for 2013	[374]
Regulation 6 of 2013	[375]
Quota Restrictions Begin to Ease to Increase Beef Supply – April 2013	[379]
The Quota System is Replaced by a Reference Price System	[394]
Later Years	[399]
CONSIDERATION	[404]
Introduction	[404]
Brett Cattle’s Causation Arguments	[407]
First Contention	[407]
Second Contention	[415]
Third Contention	[417]
Fourth, Fifth and Sixth Contentions	[420]
Seventh Contention	[441]
Eighth Contention	[446]
Ninth Contention	[449]
Tenth Contention	[452]
Causation	[456]
Before the Second Control Order	[456]
The Second Control Order	[464]
Brett Cattle’s Submissions about the Role of the Special Census	[474]
The Contention that the 2014 BSSP was Accelerated or Pursued More Vigorously	[485]
The Quotas for 2012	[494]
Lack of Reference to Restricting Imports	[494]
Dr Krisnamurthi’s Evidence and the Contemporaneous Records	[495]
Brett Cattle’s Reliance on the Revised 2010 Strategic Plan	[515]
Strict Enforcement of the 2012 Quota	[535]
Conclusions in respect of the 2012 Year	[544]
Conclusions in respect of the 2013 Year	[550]
Quantification	[558]
CONCLUSION	[559]

THAWLEY J:

INTRODUCTION

1. These reasons for judgment concern a separate question relevant to the assessment of damages in representative proceedings under Pt IVA of the Federal Court of Australia Act 1976 (Cth).

2. The applicant, Brett Cattle Company Pty Ltd, is a producer of cattle and represents a class of group members who derived income from the trade in live cattle from Australia to Indonesia. The Group Members claim to have suffered loss from a ban on the export of live cattle which was operative from 7 June 2011 to 6 July 2011.

3. The respondents are the Commonwealth of Australia and the then Minister for Agriculture, Fisheries and Forestry (collectively, the Commonwealth). The separate question was ordered by Rares J after his Honour delivered reasons for judgment in Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732; 274 FCR 337 (LJ). Familiarity with those reasons is assumed in what follows. The same abbreviations are adopted in these reasons as were used in the Liability Judgment.

4. On Monday 30 May 2011 at about 8.30 pm, the ABC broadcast “A Bloody Business” on its Four Corners program on national television: LJ[110]. The program depicted cattle being cruelly treated during their slaughter in Indonesian abattoirs: LJ[111]. The Four Corners program caused an immediate public furore and presented the Government and the Minister with a major political crisis: LJ[114].

5. On 2 June 2011:

   (a)the Minister made the Export Control (Protection of Animal Welfare) Order 2011 (Cth) (First Control Order): LJ[126]. It came into force on 3 June 2011. The First Control Order prohibited the export of live animals to 12 named places in Indonesia, except pursuant to an approval under cl 5 (exceptions clause): cl 4. In summary, the exceptions clause authorised the Minister to grant approval if satisfied that the slaughter of animals at any of the 12 otherwise prohibited places complied with the recommendations set out in the World Organisation for Animal Health (OIE) Code: LJ[127], [341].

   (b)the Secretary made the Australian Meat and Live‑Stock Industry (Protection of Animal Welfare) Order 2011 (Cth) (the First AMLI Order): LJ[128]. It prohibited the holder of a livestock export license from exporting livestock to any of the 12 named places: cl 4. It required a license holder to provide the Secretary with a declaration that the holder had taken all reasonable steps to ensure that the livestock would not be taken to any of those places and evidence that there was no intention to do so: cl 5.

6. At 9.30 pm on 7 June 2011, the Export Control (Export of Live‑Stock to the Republic of Indonesia) Order 2011 (Cth) (Second Control Order) was registered on the Register of Legislative Instruments: LJ[204]. It came into effect on registration. The Explanatory Statement for the Second Control Order included:

   Purpose of the Order

   The purpose of the Order is to suspend the export of live‑stock to the Republic of Indonesia for a period of 6 months from the date of commencement of the Order. This will enable the Australian Government to develop a robust regulatory and compliance regime to address concerns regarding slaughter of live‑stock in the Republic of Indonesia.

7. The Australian Meat and Live‑Stock Industry (Export of Live‑Stock to the Republic of Indonesia) Order 2011 (Cth) (the Second AMLI Order) was made by the Secretary on 7 June 2011: LJ[205]. It prohibited the holder of a livestock export licence from exporting livestock to Indonesia for the next six months: cl 4(1).

8. In the Liability Judgment, Rares J held that the Minister committed the tort of misfeasance in public office by unlawfully making the Second Control Order: LJ[395]. That conclusion has not been the subject of any appeal.

9. Rares J held that, if the Minister had exercised his powers lawfully, then instead of the Second Control Order, the Minister would have made a control order (an “Exceptions Order”) framed as a general prohibition on exports of live cattle to Indonesia, with the power to grant exceptions as in the First Control Order: LJ[405]. The exceptions clause in the First Control Order authorised the Minister to grant an export approval if satisfied that the slaughter of animals at any of the otherwise prohibited places complied with relevant OIE recommendations: LJ[21], [126] and [127].

10. His Honour held that the Exceptions Order would have been made on 9 or 10 June 2011 (LJ[425]) and that it would have been “done … in an orderly way after seeking to gain the cooperation of the Indonesian Government and others”: LJ[405].

11. On 6 July 2011, the Minister made the Export Control Repeal Order 2011 (Cth), which repealed the First and Second Control Orders (cl 3), and the Secretary made the Australian Meat and Live‑Stock Industry (Export of Live‑Stock to the Republic of Indonesia) Order 2011 (No 2) (Cth) (the Third AMLI Order): LJ[237]. Accordingly, the Second Control Order was in place for a month: 7 June 2011 to 6 July 2011.

12. Also on 6 July 2011, the Minister approved the Export Supply Chain Assurance System (ESCAS): LJ[4]. Versions of the ESCAS were discussed with relevant Indonesian Ministers before it was approved: LJ[224]. In summary, the ESCAS required a “closed loop system”, which complied with various animal welfare standards, in which cattle could be tracked from export until slaughter.

13. The Third AMLI Order repealed the First and Second AMLI Orders “and implemented a closed loop system under which the Secretary could issue a livestock export licence for Indonesia only if satisfied that the licence holder had in place arrangements to ensure that the consignment of live cattle would be the subject of transport, handling, slaughter and related operations that were in accordance with the OIE Code (cl 6(2))”: LJ[237].

14. When the Second Control Order came to an end, shipments of live cattle to Indonesia resumed under the new ESCAS: LJ[4]. The first shipment left Australia on 10 August 2011.

15. Rares J made “provisional findings about damages”: LJ[494]. His Honour concluded that about 88,000 additional cattle would have been imported by Indonesia in 2011 if the Second Control Order was not made and an Exceptions Order had been made: LJ[462]. His Honour determined the number of lost exports in 2011 by estimating the unused capacity of the supply chains consisting of Indonesian feedlots and abattoirs that could have met ESCAS requirements and finding that the exports that would have occurred in the lost export period were likely to have been equivalent to those that actually occurred as soon as each of the three importers obtained its first ESCAS approval: LJ[441] to [462].

16. On 18 October 2023, Rares J ordered that there be a hearing on the following discrete question relevant to damages (Separate Question):

    Had the Minister made an Exceptions Order (as defined in [405] of the [Liability Judgment]) on or about 7–10 June 2011 instead of the Second Control Order (as defined in [1] of the [Liability Judgment]), would any greater, and if so what, number of live cattle (for slaughter) have been exported into Indonesia in each of the calendar years 2011, 2012 and 2013?

17. The parties agreed that: (a) the Exceptions Order would have been put in place on 9 or 10 June 2011; and (b) the ESCAS would have been put in place no later than 27 June 2011, rather than 6 July 2011.

18. Although until closing submissions at the hearing of the separate question Brett Cattle had contended that more than 88,000 additional cattle would have been exported in 2011, by its closing submissions Brett Cattle accepted that only an additional 88,000 cattle would have been exported, consistently with what Rares J concluded. Only 2012 and 2013 remain at issue.

19. Brett Cattle contended that the Second Control Order caused Indonesia to respond in two ways which resulted in fewer cattle being imported in 2012 and 2013 than would have been imported under the “Exceptions Order Scenario”. Those two ways were, in summary, that the Indonesian Government: (a) set lower import quotas for 2012 and 2013 than it otherwise would have set; and (b) enforced those quotas strictly. Brett Cattle did not contend that the quotas for the 2012 and 2013 years were by way of retaliation or retribution: T713.37–40. Rather, Brett Cattle’s case was, in summary, that these responses were motivated by a perceived threat to Indonesia’s food security.

20. It is convenient to summarise the Exceptions Order Scenario as one where an Exceptions Order (see [9] above) had been made instead of the Second Control Order. That summary was used by the parties and is used in these reasons. The Exceptions Order Scenario is more precisely defined as a scenario where, instead of: (a) the Second Control Order effective from registration on 7 June 2011; and (b) the ESCAS introduced on 6 July 2011, the following occurred: (i) an Exceptions Order was made on 9 or 10 June 2011; and (ii) the ESCAS was introduced no later than 27 June 2011. Again by way of convenient summary, the Exceptions Order involved a total ban on exports with the power to grant exceptions, whereas the Second Control Order involved a total ban on exports, without such a power. The First Control Order involved a ban on exports to 12 identified abattoirs.

21. For the reasons which follow, in the Exceptions Order Scenario, no more live cattle would have been exported in 2012 and 2013 than were in fact exported in those years.

22. Before turning to the facts in detail, something should be said briefly about the evidence.

    THE EVIDENCE

23. There were three statements of agreed facts (SOAFs), the first of which was tendered in the liability hearing. Much of the (voluminous) evidence on the separate question was documentary. This included agreed translations of various Indonesian laws, regulations, policies and other documents. It also included many communications between Australian government officials and some communications between Australian officials and Indonesian officials.

24. Five experts were called, two with expertise in Indonesian law and three with differing, but sometimes overlapping, expertise in economics.

25. Brett Cattle called Professors Lindsey and Butt, who together drafted two reports (L&B 1 and L&B 2): CBC20; CBC21; CBC23; CBC24. These two reports addressed various general aspects of the Indonesian legal system and specific laws relevant to the issues which arise in answering the separate question, particularly the importance of food security in Indonesia. Professors Lindsey and Butt gave their evidence concurrently. They did not disagree on any material issue.

26. The three economists provided opinion evidence relevant to the determination of the number of cattle which would have been exported in the Exceptions Order Scenario.

27. Brett Cattle called Mr Smith who provided two reports, Smith 1 (dated 8 September 2023) and Smith 2 (dated 13 December 2024): CBC22 and CBC27.2. Mr Smith is a practising economist and partner of the Deloitte Access Economics practice of Deloitte Touche Tohmatsu. Since 2022, Mr Smith has been the head of the Macroeconomic Policy and Forecasting Group of Deloitte Access Economics: CBC28.3 at [25]. The Macroeconomic Policy and Forecasting Group provides economic consulting services, which includes economic modelling, forecasting (including trade forecasting) and advisory services along with scenario and policy analysis to both public and private sector organisations: CBC28.3 at [29]. Mr Smith made various assumptions about Indonesian Government policy (in which he did not have expertise) and, on the basis of those assumptions, expressed views about the lower bound (Alternative 1) and upper bound (Alternative 2) of the number of cattle that would have been exported if the Second Control Order had not been made in the 2011, 2012 and 2013.

28. The Commonwealth called Professor Marx and Professor Malcolm.

29. Professor Marx is the Robert A Bandeen Distinguished Professor of Economics at the Fuqua School of Business at Duke University and a Partner at Bates White Economic Consulting: CBC25 at 692. She specializes in microeconomics, particularly the fields of industrial organization and applied game theory, with a research focus on collusion, auctions, and procurements. Professor Marx prepared two reports: Marx 1 (dated 14 June 2024) and Marx 2 (dated 3 April 2025): CBC25; CBC28.1. Marx 1 addressed Smith 1. Mr Smith responded to Marx 1 in Smith 2. Professor Marx expressed a view as to the number of cattle that would have been exported in 2011 if the Second Control Order had not been made. However, as noted earlier, Brett Cattle abandoned its case for the 2011 year in closing submissions, with the result that it is not necessary to consider Professor Marx’s opinion in that respect.

30. Professor Malcolm is a Professor of Agricultural Economics in the School of Agriculture, Food and Ecosystem Sciences at the University of Melbourne. Professor Malcolm provided a report dated 14 June 2024 (Malcolm 1): CBC26. Mr Smith responded to Malcolm 1 in Smith 2. Professor Malcolm was retained to provide comments in relation to Smith 1. He did not express alternative views about the number of cattle that would have been exported in the Exceptions Orders Scenario, nor was he asked to.

31. The three economists prepared a Joint Report dated 12 March 2025 which set out in tabular form their respective responses to various propositions: CBC28. They gave evidence concurrently at the hearing.

1. Although it was initially foreshadowed by Brett Cattle that more lay witnesses would be called, ultimately evidence was given only by three lay witnesses.

2. The first lay witness was Mr Gregory Pankhurst, who at material times operated two Indonesian‑based cattle and beef importation companies, PT Agro Giri Perkasa (PT AGP) and PT Guna Prima Dharma Abadi. Mr Pankhurst operated these two companies with Mr Adikelana Adiwoso: T110–11.

3. The second lay witness was Mr Adiwoso. He has been the President of PT AGP since 2000: T159.34–6. Mr Adiwoso was responsible for maintaining the company’s relationship with the Indonesian Government and industry: T160.1–4. As President of PT AGP, Mr Adiwoso had dealings with the Australian Embassy, including in 2010: T178.28–34. Mr Adiwoso founded the Indonesian Feedlotters Association (APFINDO) in 1992, an organisation that lobbies the Indonesian Government on behalf of the feedlotting industry: T160.6–12. APFINDO is governed by a collective of directors and a board of advisors (Advisory Board): T160.14–16. Mr Adiwoso was an Executive Director from 1992 to 1994. From 1994 to 2013, he was a member of the Advisory Board: T160.18–23, 162.27–33. Throughout that period, APFINDO would frequently engage with the Indonesian Ministry of Agriculture: T160.25–30. Mr Adiwoso was “mostly” involved in those discussions: T160.25–30. The Advisory Board (including Mr Adiwoso) interacted with APFINDO’s constituent members to discuss the feedlotting industry, including forecasted national requirements for live cattle imports in a given year: T162.18–25.

4. The third lay witness was Dr Krisnamurthi. Dr Krisnamurthi was the Indonesian Vice Minister of Agriculture from 11 November 2009 to 19 October 2011 and the Indonesian Vice Minister of Trade from 19 October 2011 to 20 October 2014: SOAF 2 at [7].

   SUMMARY OF BRETT CATTLE’S CASE ON THE SEPARATE QUESTION

   Narrowing of the Case in Closing Submissions

5. Until its closing submissions, Brett Cattle had contended that, in the Exceptions Order Scenario, additional cattle would have been exported to Indonesia as follows (AS[16]):

   (a)in 2011, a number greater than 88,000 and at the upper end of the range furnished in Smith 1 of 119,469 to 207,323.

   (b)in 2012, a number at the upper end of the range furnished in Smith 1 of 62,743 to 302,157, yielding total exports of between 339,038 to 578,452 after adding the 276,295 actually exported.

   (c)in 2013, a number at the upper end of the range furnished in Smith 1 of 159,820 to 297,393, yielding total exports of between 608,770 to 746,343 after adding the 448,950 actually exported, thereby exceeding the highest number of live cattle ever exported to Indonesia in a calendar year.

6. In closing submissions, Brett Cattle accepted “that the quantum of the reduction for 2011 would have been around 88,000 head (as found by Rares J)”, leaving only the 2012 and 2013 years in issue: ACS[2]; T697.41–2; T739.33–6.

7. As to the 2012 and 2013 years, Brett Cattle’s primary case was that about 500,000 cattle in total would have been exported in each of 2012 and 2013: T700.30–31. On this case, an additional 223,705 cattle would have been exported in 2012, and an additional 51,050 cattle would have been exported in 2013.

8. In closing submissions, and in light of its concession in relation to the 2011 year, Brett Cattle submitted that the separate question should be treated as asking the Court to “determine whether the making of the Second Control Order caused a reduction in the size of the market for the export of live cattle to Indonesia which continued beyond the end of 2011, and into 2012 and 2013, and if so, … the quantum of that reduction” ACS[2].

   Summary of Submissions in relation 2012 and 2013

9. Brett Cattle filed points of claim (POC) dated 8 September 2023: CBA3. It provided particulars of the POC dated 20 December 2023: CBA6. Section D of the POC is titled “Impact of the Second Control Order”: CBA3 at 58. The critical proposition advanced by Brett Cattle was that the Second Control Order caused the Indonesian Government to change its approach to the “granting of import permits” in specific ways: at 58. Paragraph 47 of the POC, as modified by [7.1] of the particulars, and ignoring [47(c)] which was not pressed at hearing, stated:

   As a result of the imposition of the Second Control Order on 7 June 2011, the Indonesian Government changed its approach to the granting of import permits for imports of Australian live cattle, including by:

   (a) lowering the number of cattle in the import quotas issued for the years 2012 and 2013, as compared with previous years;

   (b) applying the import quotas strictly (or more strictly than they otherwise would have applied them in the Counterfactual Scenario), rather than revising the quotas as needed to take into account demand for Australian live cattle imports and price stability;

10. In relation to [47(a)] of the POC, Brett Cattle clarified in its particulars at [11.2] that “that the previous years to which the issuing of import quotas in 2012 and 2013 are to be compared are 2010 and 2011”.

11. Consistently with its pleaded case, Brett Cattle submitted that:

    (a)“the sudden announcement of a total ban on live cattle exports to Indonesia for a period of 6 months created a significant and immediate threat to Indonesia’s food security and caused members of the Indonesian [G]overnment to lose trust in Australia being a reliable source of beef for Indonesia in the future”: ACS[6];

    (b)“a consequence of that uncertainty and loss of trust in Australia, [was that] the Indonesian [G]overnment decided that drastic and significant steps were required to address the risk, which it had long known existed, of dependence on Australian live cattle imports”: ACS[7];

    (c)“the Indonesian [G]overnment felt the need to act immediately to re‑frame its existing policies and accelerate its efforts towards becoming self‑sufficient in beef production in order to decrease Indonesia’s reliance on Australian live cattle imports”: ACS[7]; and

    (d)“[o]ne of the ways in which the Indonesian [G]overnment did this was by significantly reducing the annual quota for live cattle imports in 2012 and 2013 and enforcing those quotas strictly”: ACS[8].

12. Brett Cattle submitted that, whilst the reduction in quota numbers in 2012 and 2013 “resulted in rapid increases in the price of beef in Indonesia and resulted in a significant reduction in the size of the domestic herd” (ACS[8]):

    the fact that the Indonesian [G]overnment persisted with this approach until around September‑October 2013 underscores the seriousness of the threat that the Indonesian [G]overnment perceived that the making of the Second Control Order posed for Indonesia’s food security.

13. Brett Cattle contended that the Court should find that, in the Exceptions Order Scenario, there would have been no significant distortion in the market for live cattle export to Indonesia. According to Brett Cattle (ACS[9]):

    What would have happened instead is that the Indonesian [G]overnment would have continued its pursuit towards self‑sufficiency and indeed the 90% by 2014 target. But it would have done so with considerable flexibility – allowing sufficient imports to meet demand, so that prices remained stable and affordable[.]

14. As mentioned, Brett Cattle’s primary case was that about 500,000 cattle would have been exported in each of 2012 and 2013 (rather than 276,295 and 448,950). The figure of 500,000 was derived, essentially, by taking average imports over selected years (such as 2005 to 2022) and submitting that these averages, together with further facts, demonstrated that “Indonesia required imports of at least 500,000 per year on average for supply to meet demand and to keep prices stable and affordable”. The contention more precisely was as follows (ACS[10], omitting references):

    In 2010, about 19% of the beef supplied into Indonesia came from live cattle. There had been a consistent increase in imports since 2004. A 350 kilogram limit was introduced in 2010. In July 2010 the Indonesian [G]overnment informed importers that import permits would only be issued to import 452,000 head of cattle into Indonesian in 2010. But ultimately 514,935 head of cattle were imported. … Rares J found that in 2011 there would have been at least 88,000 additional cattle imported in the counterfactual scenario (which takes the total in 2011 to around 500,000 head). If one adds 88,000 head of cattle to the 2011 year and excludes 2012, the average imports between 2005 and 2017 (the years the subject of agreed facts) was 543,633. If one applies that approach and takes the period 2005 to 2022, the figure is 529,344. Even the average between 2003 and 2011 is 486,136, bearing in mind that imports increased threefold between 2004 and 2011. What those different perspectives show is that in the period 2010‑2013, Indonesia required imports of at least 500,000 per year on average for supply to meet demand and to keep prices stable and affordable. If supply does not meet demand, prices increase, which is exactly what occurred between June 2011 and September 2013 when there was an interruption to supply in the second half of 2011 and Indonesia announced and enforced quotas for 2012 (283,000) and 2013 (267,000) that were 43.4% and 46.6% less than the minimum number of imports that would have been required to meet demand.

15. Brett Cattle ultimately only relied upon Mr Smith’s reports in two “limited” ways: T748.43. First, Brett Cattle relied upon Mr Smith’s lower bound (Alternative 1) as providing “comfort” for adopting the position that Indonesia would have imported at least 500,000 cattle in each of 2012 and 2013: T739.40–44; T749.27–31. Secondly, Brett Cattle submitted that if the Court were to accept Mr Smith’s assumptions about the way in which the Indonesian [G]overnment would have pursued its beef self‑sufficiency program, then the Court could embrace his analysis making adjustments where necessary or appropriate: T750.12–22. Whilst Brett Cattle may not have quite abandoned Mr Smith’s “Alternative 2”, its reliance on Mr Smith’s opinions was focussed more on Mr Smith’s “Alternative 1”.

16. Brett Cattle advanced an alternative case that, if the Court was not satisfied that 500,000 cattle (or some other number) would have been exported in total in each of 2012 and 2013, then the Court should conclude that the group members lost an opportunity to supply cattle into the market in 2012 and 2013: MFI 19 at [11] to [13]. On this alternative, as with its primary case, Brett Cattle accepted that it needed to “prove on the balance of probabilities that the making of the Second Control Order (instead of an Exceptions Order) was a material or contributing cause of the Indonesian [G]overnment deciding to impose lower quotas for imports in 2012 and 2013, and to enforce those quotas strictly”: MFI 19 at [14]. Brett Cattle submitted that the Second Control Order was (ACS[11]):

    a material or contributing cause of the Indonesian [G]overnment’s decisions to try to reduce reliance on Australian imports by announcing and strictly enforcing quotas for 2012 and 2013 that were drastically lower than in previous years, until September‑October 2013, when those policies had caused significant and sustained price increases that meant the government had to allow more imports to meet demand.

17. Brett Cattle addressed the question of causation by reference to ten contentions, each of which is addressed later in these reasons: ACS[55] to [74]. In summary, Brett Cattle’s case was that, as compared to what would have been the position in the Exceptions Order Scenario, the Second Control Order caused the Indonesian Government to change its approach to the imports of live cattle from Australia by: (a) lowering the live cattle quotas for the years 2012 and 2013 (compared to 2010 and 2011); and (b) adhering to the announced import quotas strictly, rather than revising the quotas, or issuing more import permits, to take into account demand for live cattle imports and price stability.

18. It is a necessary part of Brett Cattle’s case that, in the hypothetical Exceptions Order Scenario, the Indonesian Government would not have responded in the way it in fact did. It follows that it is necessary to consider whether the reaction of the Indonesian Government would have been any different if, instead of a total ban, there was a total ban with the power to make exceptions. If the Indonesian Government would have reacted the same way for the 2012 and 2013 years in the Exceptions Order Scenario, Brett Cattle cannot succeed.

    OVERVIEW OF THE ACTUAL NUMBERS OF LIVE CATTLE EXPORTS

19. Live cattle have been imported by Indonesia from Australia for many years: SOAF 2 at [20]–[25]. During the relevant period all of Indonesia’s live cattle was imported from Australia: SOAF 2 at [58]. To the extent it was permitted by Indonesian laws from time to time, importing from other countries was difficult for reasons of bio‑security and expense (particularly cost of transport). A substantial portion of Indonesia’s total beef consumption was sourced from “boxed beef” imports. Indonesia imported boxed beef from Australia (69% market share), New Zealand (30%), the USA and Canada (together, less than 1%): CBD611 at 33081. The First Control Order, the Second Control Order, and the AMLI Orders, did not apply to the export of boxed beef from Australia to Indonesia.

20. The evidence referred to different types of live cattle imports: “breeders” (female cattle suitable for breeding); “feeders” (cattle between 250kg and 350kg suitable for fattening in Indonesia before slaughter); and “slaughter cattle” or “ready‑for‑slaughter” cattle generally weighing significantly more than 350kg: CBD410.1 at 17364–6. This case is concerned primarily with the export of “feeders” to Indonesia.

21. The total number of cattle exported from Australia to Indonesia fell in 2003 and 2004 and then grew from 2005 to 2009. It peaked in 2009. Exports then commenced a significant decline from January 2010 for almost a year, before the Second Control Order made on 7 June 2011. In 2009, 751,143 cattle were exported: SOAF 2 at [25]. In 2010, 514,935 live cattle were exported: SOAF 2 at [30]. That is, cattle exports by number reduced by 31.4% from 2009 to 2010. As explained below, the steep decline in live cattle imports in 2010 was driven by a renewed and concerted push by Indonesia to achieve self‑sufficiency in beef by 2014. Upon the introduction of its new beef self‑sufficiency program (2014 BSSP) in January 2010, Indonesia began reducing the number of cattle imported (from January 2010) and began enforcing a 350kg weight restriction (from March 2010): CBD162 at 3452; CBD166 at 3469. By weight, rather than number, the decline in live cattle exports between 2009 and 2010 must have been more than 31.4%.

22. Beef self‑sufficiency, along with self‑sufficiency in other foods, had been a longstanding Indonesian Government objective. However, January 2010 marked the beginning of a new beef self‑sufficiency program, the 2014 BSSP. The President of Indonesia had made a political commitment to that new program. Although estimates vary, about 35% of Indonesia’s population were farmers and agriculture supplied 43% of Indonesia’s employment: CBD614 at 33212; CBD1087 at 39333.

23. The 2014 BSSP sought to address past failings and was carefully planned and structured from central government through to regional and district bodies. The 2014 BSSP was supported by significant funding and financial support for farmers. The program was to be supported by a large number of Indonesian Ministries, with primary responsibility resting with the Ministry of Agriculture.

24. Beef self‑sufficiency meant achieving the goal of 90% of Indonesia’s beef consumption being met from domestic sources: CBD410.1 at 17342. As is demonstrated by the 31.4% reduction in imports of live cattle (by number) between 2009 and 2010, and the contemporaneous evidence referred to below, Indonesia’s push towards self‑sufficiency, which had begun in earnest around 18 months before the Second Control Order, had already seriously impacted Australian exports by the time of the Second Control Order.

25. The decline in exports from 2009 to 2010 continued in the first five full months of 2011, before the Second Control Order was made on 7 June 2011. The quota for 2011 was announced on 28 December 2010 at 500,000 cattle: SOAF 2 at [32]. From 1 January 2011 to 31 May 2011, exports to Indonesia totalled 203,505 cattle: CBG38. In the same period in 2010, exports totalled 249,166, representing a (further) decline since 2010 of 18.3% by number (and more by weight given restrictions were enforced from March 2010).

26. The decline between 2009 and 2010 and the further decline in the first five months of 2011 compared to the same period in 2010 were both consistent with Indonesia’s earnest pursuit of its 2014 BSSP. The low numbers of exports in 2010, and in the first five months of 2011, were necessarily unaffected by the Second Control Order which had not yet occurred. If exports had continued throughout 2011 at the same average rate as the first five months of 2011, exports would have totalled 488,412.

27. The total of live cattle exports from Australia to Indonesia in 2011 was 412,057, comprising: 220,163 from January to 7 June 2011; no live cattle in July 2011 because of the Second Control Order; and 191,894 between August and December 2011: SOAF 2 at [36], [39], [41] and [42]. The total exports for 2011 of 412,057 were 87,943 head lower than the quota of 500,000 which had been announced for 2011. Whilst his Honour’s reasoning did not proceed on this basis, the effect of Rares J’s conclusion – that about 88,000 more cattle would have been imported than the 412,057 which were in fact imported – is that in the Exceptions Order Scenario a total of about 500,000 head of live cattle would have been exported, consistently with the quota for the 2011 year. Brett Cattle now accepts that conclusion and it is not challenged by the Commonwealth.

28. The 2012 quota was announced on 15 December 2011 for 283,000 head of live cattle: SOAF 2 at [44]. The quota was not filled in 2012, with only 276,295 head of cattle being imported that year: SOAF 1 at [18]; SOAF 2 at [47].

29. In 2013, 448,950 head of cattle were exported from Australia to Indonesia: SOAF 2 at [53].

30. In opening submissions, Brett Cattle provided the following aide‑memoire, showing actual cattle exports to Indonesia from 2005 to 2014:

31. The first dotted red line marks 7 June 2011, when the Second Control Order came into effect. The second red dotted line marks the end of 2013. Indonesia abandoned its quota system for live cattle imports on 2 September 2013 and replaced that system with a reference price system. Brett Cattle accepted that the Second Control Order did not impact the number of cattle imported after introduction of the reference price system. The green dotted line represents, in essence, the average of imports between 2005 and 2014 and Brett Cattle’s primary case that 500,000 cattle would have been exported in the absence of the Second Control Order.

32. The Commonwealth’s position was that (a) exports to Indonesia were falling because of Indonesia’s implementation and pursuit of the 2014 BSSP; and (b) export numbers would have continued to fall. On the Commonwealth’s case, even if no control orders had been made, the exports in 2012 and 2013 would have been no more than they in fact were. The Commonwealth contended (i) the Second Control Order could not be said to have materially affected the level or strictness of enforcement of the 2012 or 2013 quotas; and (ii) alternatively, if it could be said that the Second Control Order materially affected the level or strictness of enforcement of the quotas for 2012 and 2013, the Indonesian Government would have acted in relevantly the same way in the Exceptions Order Scenario, which would have involved a total ban with the power to grant exceptions and otherwise included all the other stressors on the live cattle trade and Indonesia’s relationship with Australia as in fact existed.

    THE FACTS

1. The principal questions are whether: (a) the Second Control Order caused the live cattle quotas in 2012 and 2013 to be less than they would have been under the hypothetical Exceptions Order Scenario; and (b) those quotas, once set, would have been as strictly applied under the hypothetical Exceptions Order Scenario as they were in fact applied. These questions cannot be answered without an understanding of some aspects of Indonesia’s legal system and the political, social and economic context in which the events arose.

2. It is convenient to turn first to Indonesia’s legal system and the significance of food security.

   The Indonesian Legal System, Food Security and Beef Self-Sufficiency up until 2010

3. Indonesia declared independence on 17 August 1945, receiving Dutch colonial law as it then stood, subject to the constitutional exclusion of those parts of it considered inconsistent with Independence: L&B 1 at 250 [12]–[13]. Indonesia’s Constitution was issued when it declared independence: at 253 [22]. Indonesia has a civil law system: at 250 [12]. Indonesia has a hierarchy of regulatory sources of laws which include its 1945 Constitution (Undangundang Dasar), statutes (laws) (undang‑undang), government regulations (peraturan pemerintah) and presidential regulations (peraturan presiden): at 251 [14]. This is by no means a complete list: at 252–3 [19].

4. Indonesia’s Constitutional Court, the Supreme Court, has interpreted the Indonesian Constitution as providing that food security is an inseparable part of Indonesia’s independence, and a fundamental constitutional principle: L&B 1 at 263–4 [56(a)]. The Indonesian State has sovereignty over food security and a constitutional obligation to exercise that sovereignty to ensure food security: at 264 [56(b)]. The Indonesian Government has a constitutional obligation to secure a supply of food to realise food security for the welfare and prosperity of all Indonesian people: at 264 [56(c)].

5. Food imports, including imports of livestock, are permitted “incidentally” to ensure national food security, but only if they do not eliminate Indonesia’s sovereignty over food and those imports are aimed solely at ensuring food security: L&B 1 at 264 [56(d)]. When meeting its obligation to realise food security, the Indonesian Government must prioritise domestic food production, and ensure affordability, including by controlling and managing food supply: at 264 [56(e)].

6. Having considered Indonesia’s Constitution, Law 7 of 1996 on “Food” (the 1996 Food Law) and relevant constitutional cases, Professors Lindsey and Butt concluded at L&B 1 [56(f)]:

   Livestock imports are … permitted only to meet the following constitutional imperatives:

   1. economic democracy (with the principles of togetherness, just efficiency, sustainability and independence);

   2. the greatest possible prosperity of the people, including by protecting the public against potential economic losses;

   3. food security, that is, strengthening self‑sufficiency and sustainability of the Indonesian domestic livestock industry to strengthen sovereignty and national food resilience; and

   4. the national interest (ensured through supervision and control of imports by government and the national legislature).

7. Achieving self‑sufficiency in beef production, along with certain other staple foods, had been a long‑standing Indonesian Government policy. In 1999, the Indonesian Government instituted its first beef self‑sufficiency program with the aim of achieving self‑sufficiency in beef by 2005: CBD250 at 5863. Self‑sufficiency in beef was not achieved by 2005.

8. President Susilo Bambang Yudhoyono was President of Indonesia for 10 years, from October 2004 to October 2014. In 2005, during his first term, a second beef self‑sufficiency program was commenced, with the aim of achieving self‑sufficiency by 2010: CBD250 at 5863. Self‑sufficiency in beef was not achieved by 2010.

9. On 5 February 2007, the Indonesian Government enacted Law 17 of 2007 on “Long‑Term National Development Plan of 2005‑2025”: CBD513 at 31722. This implemented the “2005‑2025 Long‑Term National Development Plan”, referred to as the “National RPJP”. After referring to the economic crisis Indonesia faced in 1997, the National RPJP referred to poverty in Indonesia’s agricultural sector, stating that “poverty will still need to be given serious attention in development over the next 20 years”: at 31737. It was noted that “[t]he social economic condition of the people living in rural areas is generally much left behind compared with those living in urban areas” and that “the role of urban areas that was expected to induce the growth of rural areas has in fact provided an adverse effect on the growth of rural areas”: at 31746.

10. Chapter IV.1.2 was titled, “Realizing a Nation that is Competitive” (at 31772) and, under the sub‑heading “Strengthening the Domestic Economy with a Global Orientation and Competitiveness”, referred to objectives of developing rural areas, reducing poverty in rural areas, strengthening food security and improving the welfare of farmers: at 31774. It was contemplated that Indonesia would develop its international trade in a way which would include a measure of protection of its domestic interests with a view to “reducing poverty, reducing unemployment, developing rural areas, and protecting the national economy from unhealthy international trade practices”: at 31777 [20]. In Chapter IV.1.5, the object of the food security system was described as being directed at maintaining the national food security and self‑reliance by developing the domestic production capacity: at 31793 [14].

11. On 30 January 2008, the Minister of Agriculture (then Minister Anton Apriyantono) issued a regulation (Regulation 7 of 2008) concerning “Terms and Procedures for the Import and Export of Semen, Breeding Livestock and Beef Livestock”: CBD514. As revealed by the terms of the regulation, it was introduced after “considering” domestic needs and “in an effort to increase state foreign exchange earnings” which “can be done through the import and export activities”: at 31809. Amongst other things, the regulation contemplated that import permits could be issued for beef livestock with a maximum weight of 350kg (and a maximum age of about 1.5 years): CBD515 at 31836. As will be seen, the weight restriction was not apparently enforced until about March 2010: CBD162 at 3452; CBD166 at 3469.

12. On 4 June 2009, the Indonesian Government enacted Law 18 of 2009 concerning “Animal Husbandry and Health”: CBD286.1 at 7883. The improvement of the welfare of farmers and the community was an aim of regulations on animal husbandry and health: art 3 at 7842. Law 18 of 2009 included laws:

    (a)directed to reducing the slaughter of female breeding livestock (“breeders”), including by making it an offence “to slaughter productive female ruminant livestock because they produce good livestock” (arts 18 and 86 at 7849 and 7878);

    (b)directed to encouraging “as many people as possible to carry out livestock cultivation” (art 32(1) at 7853–4);

    (c)obliging the Indonesian Government to organise and facilitate marketing activities for animals or livestock and animal products (with a view to fostering increased production) and providing for imports of livestock only where domestic production was insufficient to meet consumption needs (art 36 at 7854–5);

    (d)requiring the Indonesian Government to “empower” farmers by facilitating sources of finance and capital and providing services and technical assistance and by “protecting prices and animal products from overseas” (art 76 at 7872–3).

13. The accompanying Explanation to Law 18 of 2009 indicated that the aims of the laws included “increasing state income and foreign exchange; expanding business opportunities and employment opportunities; and improving people’s welfare”: CBD286.1 at 7885.

    Indonesia’s Renewed Push Towards Beef Self-Sufficiency

14. President Yudhoyono was re‑elected to a second term in the presidential election in July 2009. He was sworn into office on 20 October 2009. Indonesia’s second cabinet was then sworn in.

15. President Yudhoyono had made a political commitment to deliver food security through self‑sufficiency: T235.34 (Dr Krisnamurthi). This involved increasing domestic production, modernising the agricultural sector and addressing the welfare of farmers, including through an increase in income. The significance of this political commitment is difficult to overstate, not only because food security is constitutionally entrenched. The evidence indicated that a substantial proportion of Indonesians were either employed directly in, or were provided employment by, the agriculture sector. One estimate was that “labour‑intensive agriculture has a dominant role in the economy, accounting for approximately 12.4% of GDP and provided employment for 43% of the population”: CBD614 at 33212 (March 2011).

16. The Special Adviser to the President on Food Security is reported as having stated in late 2012 that 35% of Indonesia’s working population were farmers and a large proportion of those were living under the poverty line: CBD1087 at 39333 [8]. He was also reported as stating at that time that it was “politically … very difficult to increase the import quota on beef and cattle, as the government needed to be seen to protect farmer’s interests”: at 39333 [8].

17. Poor Indonesian rural households derived around half of their income from agricultural activities: CBD527 at 32391. Small‑scale subsistence farms accounted for about 87% of total cultivated land: CBD614 at 33212. Around 75% of farms in Indonesia are less than one hectare in size: CBD614 at 33179. Of those small‑scale farmers, estimates suggest around 6.2 million were livestock farmers: CBD1152 at 40679.

18. Minister Suswono became the Minister of Agriculture in Indonesia’s second cabinet. He was tasked by President Yudhoyono with addressing food security, regional food self‑sufficiency, farmer income and addressing the sustainability and modernisation of Indonesian agriculture: T236 (Dr Krisnamurthi). Minister Suswono was a member of Indonesia’s conservative Prosperous Justice Party (PKS), the support base of which had traditionally been smallholders and farmers: CBD166 at 3477.

19. In summary, as at late 2009 and early 2010, Indonesia’s revitalised push towards self‑sufficiency in beef was motivated by a variety of considerations, including: the constitutionally entrenched obligation of the Indonesian Government with respect to food security; Indonesia’s longstanding desire to achieve self‑sufficiency in various agricultural products including beef; addressing poverty in Indonesia’s agricultural sector (CBD513 at 31737, 31746, 31777); improving the welfare and income of farmers and accelerating rural economic growth (CBD286.1 at 7842, 7885; CBD410.1 at 17338, 17393, 17421; CBD527 at 32391, 32457); and economic considerations, including increasing Indonesia’s foreign exchange earnings or preventing a draining of foreign exchange reserves (CBD514 at 31809; CBD410.1 at 17421, 17437) and increasing state earnings (CBD286.1 at 7885).

20. Various Indonesian Government publications and regulations made in January and February 2010 are relevant to Indonesia’s revitalised push towards beef self‑sufficiency, including:

    (a)Regulation 5 of 2010, enacted by the President on 20 January 2010, concerning the National Medium‑Term Development Plan for 2010‑2014 (National RPJM);

    (b)“Blue Print: Beef Self Sufficiency Program 2014”, published by the Ministry of Agriculture in January 2010 (Blueprint);

    (c)Regulation 15 of 2010, made by Minister Suswono, about the “Ministry of Agriculture’s 2010‑2014 Strategic Plan” (2010 Strategic Plan), enacted on 28 January 2010;

    (d)Regulation 19 of 2010, made by Minister Suswono, concerning a “General Guide of Beef Self‑Sufficiency Program 2014”, enacted on 5 February 2010; and

    (e)Presidential Instruction No 1 of 2010 titled “Accelerating the Implementation of the 2010 National Development Priorities”, issued on 19 February 2010.

    The National RPJM

21. On 20 January 2010, the President enacted Regulation 5 of 2010 concerning the “National Medium‑Term Development Plan for 2010 to 2014”: CBD526. The National RPJM (annexed to the regulation) was “an elaboration of the President’s vision, mission and program resulting from the 2009 General Election”: art 2(1) at 32375. Article 2(2) explained:

    The National RPJM contains national development strategies, general policies, programs of Ministries/Agencies and across Ministries/Agencies, regional and cross‑regional programs, and a macroeconomic framework which includes a comprehensive picture of the economy including the direction of fiscal policy in work plans in the form of regulatory frameworks and indicative funding frameworks.

22. The National RPJM explained (CBD527 at 32380):

    [T]he RPJMN 2010‑2014 is the guideline that central and regional governments, society, and the business community should follow in order to achieve the goals of the nation contained in the Preamble of the 1945 Constitution of the Republic of Indonesia.

23. The National RPJM, being a “Medium‑Term” Development Plan was the second phase of implementation of the 2005‑2025 National Long‑Term Development Plan promulgated through Law 17 of 2007: CBD527 at 32379, 32401; CBD412.1 at 20628. It included targets, related to the welfare of the people, including growth rate targets for production of paddy, maize, soybean, sugar and cow meat: CBD527 at 32423. The growth rate for “cow meat” was 7.3% per year.

24. Increasing food production was seen as important in improving the welfare of farmers, comprising a significant part of Indonesia’s population, and in decreasing poverty rates in rural areas (CBD527 at 32391):

    The increase in food production has also been attained in other commodities, including sugar, soybean, and maize. The success in attaining the increased food production will be a benefit for both producers and consumers. Producers will experience an increase in their welfare, while consumers will benefit from the attained stability of food prices. As a half of the poor households’ income in rural areas relies on agricultural activities, the increased food production is a welcome benefit. This condition will in return decrease the poverty rate in rural areas, as it also did in the 1970s and 1980s.

25. The National RPJM stated that the (more generally framed) “vision and mission” as set out in the document “needs to be formulated and elaborated in a more operational way into a number of priority programs so that they can be implemented more easily and their outputs can be measured”: CBD527 at 32427.

26. The National RPJM set out eleven national priorities and three “other national priorities”: CBD527 at 32426–36. The fourth national priority was “reducing poverty”: at 32430. It was noted that “the poverty rate had declined from 16.7 per cent (36.1 million persons) in 2004 to 14.1 per cent (32.5 million persons) in March 2009”: at 32388. This reduction was seen to be due in part to intervention programs which were “continually being implemented” to provide “wider access to low‑income communities in order to have them benefit from the economic growth”: at 32388. The interventions included the provision of subsidies and funding programs such as the Smallholder Credit Program (KUR). The mechanism for allocating the KUR was to be improved from 2010 and its coverage was to expand from 2011: at 32430. It was noted that there had been an increase in food production in some areas and that this had decreased the poverty rate in rural areas (at 32391 – see [87] above).

27. The fifth national priority was “food security”: CBD527 at 32431. This priority was summarised in a way which linked it to the income level of farmers and the “Farmers Terms of Trade” (at 32431):

    This priority pertains to efforts to increase food security and continuation of the revitalization of agriculture for realizing self‑reliance in food, increasing the competitiveness of agricultural products, increasing the income level of farmers, and conserving the environment and natural resources. Increasing the growth rate of the agricultural sector in the GDP to 3.7% and increasing the Farmers Terms of Trade to 115‑120 in 2014.

    The Blueprint

28. On 1 January 2010, the Ministry of Agriculture published the “Blue Print: 2014 Beef Self Sufficiency Program” (Blueprint), signed by Mr Suswono: CBD410.1. The Blueprint was prepared by the Ministry of Agriculture through the Directorate General of Livestock: at 17377. The Foreword included (at 17325):

    This Blue Print is hoped to be useful and serves as a reference in managing the implementation of operational activities and coordination between relevant agencies involved in achieving beef self‑sufficiency in 2014.

    …

    This Blue Print must be followed‑up and further elaborated in general guidelines and technical guidelines at the central level, implementation instructions at the provincial level and technical instructions at the city and district level.

29. The Executive Summary stated that the 2014 BSSP was to be implemented through five “main activities” and thirteen “operational activities” (CBD410.1 at 17327 [6]):

    The 2014 BSSP program shall be implemented through five main activities:

    (A) Providing of feeder cattle/local beef; (B) Increasing the productivity and reproductive capacity of local cattle; (C) Preventing slaughter of productive female cattle; (D) Providing breeder cattle; (E) Regulating domestic beef supply. In more detail, the five main activities are organised into 13 (thirteen) operational activities which include: (1) Development of local cattle breeding and feedlotting businesses; (2) Development of organic fertilizer and biogas; (3) Development of livestock‑crop integration; (4) Empowerment and improvement of the quality of slaughterhouses; (5) Optimization of IB [inseminasi buatan, meaning artificial insemination (AI): CBD412 at 20404] and INKA [Intensifikasi Kawin Alam, meaning intensifying natural mating – at CBD412 at 20404 and CBD410.1 at 17391] activities; (6) Provision and development of feed and water; (7) Countermeasures against reproductive disorders and improvement of animal health services; (8) Rescue of productive female cattle; (9) Improvement of areas of breeder cattle sources and breeding business institutions; (10) Development of beef cattle breeding business through VBC; (11) Provision of breeder cattle through interest subsidies (cattle breeding business loan (KUPS) program); (12) Arrangement for feeder cattle and beef supply; (13) Arrangement for distribution and marketing of cattle and beef; as well as Operations of activities of central/provincial/ district/city [governments].

    (Bolding omitted.)

30. In the Introduction in Chapter 1, it was noted that the volume of imports had been increasing: CBD410.1 at 17336. It then stated (at 17336):

    If we are not cautious of this situation, it could place this country farther from the independence and sovereignty over the issue of animal‑based food, especially beef, that we have been expecting, which in turn may lead us to fall into the food trap of exporting countries.

31. The Introduction referred to President Yudhoyono’s previous beef self‑sufficiency program, noting that it had not received adequate financial support and that it faced a number of other challenges: CBD410.1 at 17337. It noted the President’s support for the 2014 BSSP.

32. The Blueprint was to be used to direct operational activities; provide comprehensive targets; set benchmarks as indicators of success; and provide a reference for required resources, “especially the provision of multi‑year funding”: CBD410.1 at 17338–9. The Blueprint recognised that the implementation of the 2014 BSSP needed political support from legislative institutions, policies with stronger legal force, and the participation of governments and all components of society at the central and regional levels: at 17339.

1. Although the Ministry of Agriculture took the lead role in the 2014 BSSP, the Ministry of Agriculture was “expected to be able to mobilise and increase the role of other ministries” including the Ministry of Finance (“by providing funds in the budgets to stimulate livestock businesses or to implement all government programs”), the Ministry of Banking (“by providing capital loans with their interest subsidised by the government, or providing capital loans through other different schemes”), the Ministry of Industry, the Ministry of Trade (“by controlling the distribution and marketing of livestock and its products at home and overseas”), the Ministry of Cooperatives and SMEs (“by providing credit assistance to small and medium scale farmers”), the Ministry of State‑Owned Enterprises and the Ministry of Energy‑Mineral Resources (“by supporting the use of CSR funds from large government‑owned companies (which operate outside the agricultural/livestock sector) for the development of livestock businesses”): CBD410.1 at 17392–3.

2. The Blueprint contemplated substantial measures, and funds, to achieve beef self‑sufficiency, including providing incentives, facilitating credit schemes with low interest (KUPS) and “continuing the pro‑poor programs for small/medium scale breeders through APBN (National Budget) / APBD (Regional Budget)”: CBD410.1 at 17387 (emphasis omitted). The Blueprint contemplated that funding “will continue to be increased” (as in fact happened) and that funds would not only come from the APBN of the Ministry of Agriculture but also from funds from other Ministries such as the Ministry of Social Affairs, the Ministry of Manpower and Transmigration, the Ministry of Cooperatives and SMEs and the Ministry of Energy and Mineral Resources: at 17387–8.

3. The Blueprint contemplated providing direct funding to farmers through cattle breeding business loans (at 17327 at [6]), developing incentives for both upstream and downstream activities (at 17384–5), stimulating farmers “so that they will develop the local cattle farming businesses” and providing support: at 17421.

4. An objective underlying the Blueprint was to accelerate rural economic growth and increase the income of farmers, whilst balancing this against the cost to consumers. 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 of 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”: CBD410.1 at 17338 (emphasis added).

5. As other documents make clear, a “fundamental” (CBD412.1 at 20690) aspect of the strategy comprising the 2014 BSSP was to keep cattle prices high to improve farmer income and promote livestock farming generally. Thus, “[p]olicies on pricing and trade must be able to provide assurance to businesses to enable beef prices to remain attractive but still affordable”: CBD410.1 at 17342.

6. Another reason for controlling imports was that “[d]ependence on imported beef and feeder cattle to meet domestic consumption could undermine efforts to improve domestic capabilities”: CBD410.1 at 17346. Dr Krisnamurthi agreed that it was part of the design of the Blueprint to decrease imports and increase local production: T257.45–258.11.

7. It was recognised that “[p]rotection for small farmers and businesses in general in the context of international trade can [be achieved] by taking advantage of non‑tariff measures, such as ASUH [Aman, Sehat, Utuh and Halal, meaning Safe, Healthy, Whole and Halal: CBD410 at 17193; CBD410.1 at 17343] and SPS [Sanitary and Phytosanitary Agreement]”: at 17342. The Blueprint was replete with references to the use of both tariff and non‑tariff (such as bio‑security) barriers, or policies, for the “protection” of local farmers and businesses: CBD410.1 at 17342, 17366, 17358.

8. After referring to the fact that “current imports of beef and feeder cattle are very large (30 percent of national beef demand)”, the Blueprint observed that increasing imports “severely reduce[d]” Indonesia’s foreign exchange: CBD410.1 at 17326. It was further observed that “[i]f we are not cautious of this situation, it could place this country farther from the independence and sovereignty over the issue of animal‑based food, especially beef, that we have been expecting, which in turn may lead us to fall into the food trap of exporting countries”: at 17336.

9. The Blueprint contemplated import restrictions, or “controlling imports” (CBD410.1 at 17338), as one of the measures which would be implemented to achieve self‑sufficiency: at 17326, 17356 (“policies are needed to regulate import volumes”).

10. As has been mentioned, the Blueprint contemplated five “main activities” and thirteen “operational activities”: CBD410.1 at 17327 at [6]. The fifth main activity was “[r]egulating the domestic stocks of beef”: at 17436. A stated justification for the fifth main activity was that “imports have … harmed local cattle farming businesses”: at 17436. The Blueprint contemplated preventing harm to local cattle farming businesses caused by imports by introducing “regulations, guidelines, instruments, and incentives that are able to provide a conducive atmosphere for the development of competitive beef cattle agribusiness in a sustainable manner”: at 17436.

11. Within the fifth main activity, the twelfth “operational activity” was “regulating the stocks of feeder cattle and beef”: CBD410.1 at 17437. The stated aim of the twelfth operational activity was “to implement more conducive regulations in feeder cattle imports, so that they: (i) comply with the SOP’s [guidelines] in place, and (ii) follow correct quarantine procedures”: at 17437. The “action programs” included “[s]upervising and monitoring feeder beef cattle import activities in accordance with the existing regulations and legislation”, “[d]eveloping regulations at the Ministerial level on the import and export of beef cattle and their breeder cattle; as well as developing and disseminating the guidelines (SOP) for importing feeder cattle”: at 17417.

12. The twelfth operational activity also included, as an action plan in relation to boxed beef, “[r]efining and enforcing the Minister of Agriculture’s regulations on beef imports”: at 17438.

13. Dr Krisnamurthi agreed that the Blueprint contemplated that there needed to be regulations and policies to regulate and reduce imports: T254.38–255.12.

14. Indeed, the Blueprint contemplated as a “prerequisite for success” (CBD410.1 at 17455), “[i]mplementing cattle and meat import control regulations correctly and consistently by referring to statutory regulations”: at 17457. The Blueprint contemplated refining or reviewing existing import regulations, or improving or adapting Ministerial Regulations that were not “aligned with the intention or philosophy of the 2014 BSSP”, to realise the beef self‑sufficiency plan: at 17369–70. As will be seen, regulations were introduced in September 2011 (see [271] below).

15. Consistently with the desire to enforce existing regulations, the Blueprint contemplated, in relation to “Policies and Legislation”, that “feeders” of an initial weight of less than 350kg would be “fattened” in Indonesia for three months or more: at 17374–5. As noted earlier, Regulation 7 of 2008 imposed a weight restriction of 350kg on imported cattle. This regulation was enforced from March 2010 after the Blueprint was published: CBD162 at 3452; CBD166 at 3469. The Blueprint noted that “[f]attening will provide added value and create jobs”: at 17368. The cost of feed in Indonesia was relatively low: at 17368.

16. The Blueprint contained a detailed organisational and operational structure from the “Central Level”, through to the “Provincial Level” and the “Regency/City Level” to the “Sub‑District Level”, which contemplated a “Technical Task Force in each sub‑district area”: CBD410.1 at 17445–50.

17. The Blueprint noted that Indonesia’s cattle population had increased from 2005 (10.6 million), with sharp increases in 2007 and 2008, but a slower increase in 2009 (12.61 million): CBD410.1 at 17348.

18. The size of the domestic herd was used in the Blueprint as a central consideration in determining when sustainable self‑sufficiency would be achieved. The Blueprint was based on a cattle population in 2009 of 12,610,100 and contemplated that cattle numbers would be 14,231,700 in 2014, when beef self‑sufficiency (at 90%) would be achieved: CBD410.1 at 17400–402 (Table 8). The Blueprint contemplated increasing productivity including through artificial insemination (AI) and breeding programs, reducing slaughter of productive female cattle and slaughter of cattle at a sub‑optimal weight: at 17326–7 at [2], [5], [6], 17385.

19. The Blueprint contemplated holding a special census of cattle numbers around June or July 2011: CBD410.1 at 17357. Indonesia conducts an agricultural census every 10 years and has done so since 1963: CBD471 at 25693. As at early 2010, the next agricultural census was to be held in 2013: at 25693. As at January 2010, the pursuit of beef self‑sufficiency by 2014 was sufficiently important to warrant an extensive earlier and more specific census. The Blueprint set out nine “pre‑requisites for success”, the seventh of which was: “It is absolutely essential that the Indonesian Livestock Census (STI), especially on cattle, be carried out so that there is a clear basis in evaluating the success of the 2014 BSSP program”: CBD410.1 at 17457.

20. The Blueprint referred to the fact that Indonesia relied solely on Australia for its live cattle imports and recorded that it was “necessary to consider other countries or sources, while still paying attention to” the risk of exotic diseases: CBD410.1 at 17361.

21. The Blueprint recorded that, between 2004 and 2006, the proportion of imports of offal to beef had been “rather high” and that, as a result, the government implemented a policy in 2007 to reduce the types of offal from eight types (heart, liver, tripe, intestine, spleen, lung, kidney, and testis) to two types (cow’s heart and liver): CBD410.1 at 17362. The Blueprint stated that it was “hoped that future imports of offal can be reduced or minimised” or even banned altogether: at 17362.

    The 2010 Strategic Plan

22. On 28 January 2010, Minister Suswono made Regulation 15 of 2010 about the “Ministry of Agriculture’s 2010‑2014 Strategic Plan” (2010 Strategic Plan which was dated 29 January 2010): CBD412.1 The 2010 Strategic Plan is a lengthy and detailed document and addresses numerous agricultural activities, including by identifying production targets for 40 agricultural products: CBD412.1 at 20621–2.

23. The foreword to the 2010 Strategic Plan identified “achieving self‑sufficiency and sustainable self‑sufficiency” as the first of four “main targets”: CBD412.1 at 20610. The fourth “main target” was “increasing farmer welfare”: at 20610. The second and third main targets were increasing food diversification and increasing added value, competitiveness and exports: at 20610. A later edition of the 2010 Strategic Plan noted that the target of increasing farmer welfare is “determined by the success of three other success targets”, being the first three main targets: CBD414.1 at 21668.

24. Chapter I of the 2010 Strategic Plan contained a lengthy and detailed introduction: CBD412.1 at 20628. After an introductory paragraph, it explained that “the Ministry of Agriculture will position rice, corn, soybeans, beef, and sugar as the five main food commodities”: at 20628. According to the 2010 Strategic Plan, rice and corn were already in a position of self‑sufficiency and accordingly they were targeted for sustainable self‑sufficiency: at 20628.

25. Chapter II summarised the Ministry’s vision, mission and aims: CBD412.1 at 20657. Chapter III appeared after a title page “Five Main Food Commodities 2010‑2014”: at 20658. Box 3.1 addressed the four main targets: at 20661. As to the first, it identified the main target of achieving self‑sufficiency in soybeans, sugar and “[b]eef and buffalo meat: production of 0.66 million tonnes in 2014 (average increase of 7.13% per year)” and sustainable self‑sufficiency in rice and corn: at 20661. As to the third main target, it identified amongst other things increasing the balance of trade surplus from US$24.3 billion (2010) to US$54.5 billion (2014): at 20661. As to the fourth main target, it identified “increasing farmer welfare” through government and private investment and support from other Ministries and institutions that support farmers: at 20661.

26. Table 3.1 identified the targets in the following way, with a target for beef increasing at an average of 7.3% per year, consistently with the National RPJM (CBD412.1 at 20662):

    Table 3.1Targets, Production Goals and Growth of Five Main Food Commodities 2010‑2104 [sic]

COMMODITY		TARGET	Production 2009 (Million Tonnes)	Production Goal (Million tonnes)		Average Growth/Year (%)
				2010	2014
1.	Rice1)	Sustainable self‑sufficiency	63.844)	66.68	75.70	3.22
2.	Corn2)	Sustainable self‑sufficiency	17.664)	19.80	29.00	10.02
3.	Soybeans2)	Self‑sufficiency 2014	1.004)	1.30	2.70	20.05
4.	Sugar	Self‑sufficiency 2014	2.855)	2.99	5.7	17.83
5.	Beef3)	Self‑sufficiency 2014	0.105)	0.41	0.55	7.30

Note: 1) MDG, 2) Dry Shelled (PK), 3) Carcass, 4) Forecast Figure III, 5) Target Number

1. Consistently with the Blueprint, Chapter III of the 2010 Strategic Plan identified five main activities to achieve beef self‑sufficiency. It included (CBD412.1 at 20670):

   Achieving beef self‑sufficiency will be pursued through 5 (five) main activities, namely:

   1.        Provision of local feeder/beef cattle;

   2.        Increased productivity and reproductivity of cattle;

   3.        Prevention of slaughter of productive female cattle;

   4.        Provision of calves (bibit sapi); and

   5.        Regulation of domestic beef stock.

2. The five main activities were detailed in thirteen “operational activities”, again consistently with the Blueprint. Table 3.6 provided beef production targets consistent with Table 3.1, with an average growth rate of 7.3% (buffalo had an average growth rate 0.32%): CBD412.1 at 20671.

3. The 2010 Strategic Plan recorded that the Cattle Breeding Business Credit (KUPS) scheme would continue for the next five years with its “utilisation optimised for farmers and livestock farmers”, and that the Ministry of Agriculture would “continue to fight for the provision of interest subsidies for farmers and livestock farmers” (CBD412.1 at 20678):

   Credit interest subsidies are the interest difference between the interest received by banks and the interest paid by farmers. Interest subsidies are one of the incentives for farmers/livestock farmers who are in the credit scheme program.

   There are at least three credit schemes currently receiving interest subsidies [relevantly for present purposes, including Cattle Breeding Business Credit (KUPS)], and these will continue for the next 5 years, and their utilisation optimised for farmers and livestock farmers. The Ministry of Agriculture together with related Ministries/Institutions will continue to fight for the provision of interest subsidies for farmers and livestock farmers and for agricultural development actors.

4. In relation to the third “main target” of increasing added value, competitiveness and exports, the 2010 Strategic Plan stated (CBD412.1 at 20687):

   Increasing competitiveness will be focused on developing products based on local resources which (1) can increase the fulfillment of domestic consumption demands; and (2) can decrease the dependence on imports (import substitution). The indicators are a large market share in the domestic market and a decline in net imports.

   (Original emphasis.)

5. The various strategies, action plans and ministerial support for improving farmer welfare – the fourth “main target” – were addressed in detail: CBD412.1 at 20689–92. Section 3.1.4 began by reinforcing the importance of farmers’ income and the Ministry of Agriculture’s role in seeking to ensure that farmer income increased. It included (at 20389–90):

   An important element influencing farmer farmer income levels [sic: An important element influencing farmers’ welfare is farmers’ income levels.] However, efforts to increase farmers’ income are not always followed by an increase in welfare as this also depends on other factors such as household expenditure and non‑financial factors such as socio‑cultural considerations. However, it is farmer’s income that is directly related to the main tasks and functions of the Ministry of Agriculture. As such, the main priority of the Ministry of Agriculture is undertaking efforts to increase farmers’ income.

   Currently, the average per capita agricultural income is only around IDR 4.69 million per year. In 2014, the Ministry of Agriculture has targeted per capita farmer income to increase to IDR 7.93 million per year. This means that efforts must be made to increase farmer income per capita by 11.1 percent every year.

   (Emphasis added.)

6. The 2010 Strategic Plan noted that it was “fundamental” that selling prices did not decrease: CBD412.1 at 20690. One of the strategies to achieve this outcome was to provide protection against “import attacks” by implementing tariff and non‑tariff barriers (at 20690):

   The value of farmers’ income can come from agricultural business and non‑agricultural business. The value of income coming from agricultural business is calculated as the difference between the sale value of agricultural commodities produced and farming costs incurred. The sale value of farming products will be determined by the production volume and the selling price. The greater the production volume, the greater the physical volume that can be sold. Meanwhile, even though the production of agricultural commodities has successfully increased, this will only significantly increase sale values if selling prices also increase or are at least constant. Therefore, in order to increase sale values, it is fundamental to ensure that selling prices do not decrease.

   In order to achieve this, the Ministry of Agriculture has prepared a number of action plans to ensure an increase in farmers’ income. These action plans include:

   1.   Continuing subsidies, including subsidies for fertiliser, seeds/semen and credit/interest.

   …

   7.   Providing protection against import attacks on agricultural products, both through tariff and nontariff instruments. This is particularly needed to protect against falling agricultural prices due to unfair international trade (unfair markets)

   (Emphasis added.)

7. Table 3.18 summarised the various strategies, action plans and ministerial support for improving farmer welfare: CBD412.1 at 20692. Strategies included the revitalisation of livestock breeding and “Farmer Financing”. Ministerial/Institutional support was to be provided by the Coordinating Ministry for the Economy, the Ministry of Finance and the Ministry of Trade, amongst others. The Ministry of Trade’s support role was described as including the protection of domestic product prices, including through import controls (at 20692):

   •Structure international and domestic marketing cooperation, tax arrangements and export and import procedures, protect local product prices

   •Cooperation on promotion, diplomacy, negotiation, market intelligence

8. Later in the 2010 Strategic Plan, it was noted that the Ministry of Trade was to (1) provide support by “simplifying export and import procedures which support price increases for fresh and processed agricultural products”; (2) provide “[p]rice protection for import substitute products that the farming community is able to produce”; and (3) “[c]ontrol the effectiveness of the implementation of regulations on the import of livestock and livestock products”: CBD412.1 at 20724–5.

9. Chapter IV was titled “Policy Direction and Strategies”: CBD412.1 at 20697. It recorded that food security was identified in the National RPJM as the fifth of eleven national priorities and that it was the national priority that most directly related to the Ministry of Agriculture: at 20699. It again referred to the objective of increasing farmers’ income and Farmer Terms of Trade (at 20699):

   Of these 11 National Priorities, the one that relates directly to the Ministry of Agriculture is the 5th Priority, that is Food Security. The priority of Food Security includes improving food security and continuing agricultural revitalisation to reach food self‑reliance, increasing the competitiveness of agricultural products, increasing farmers’ incomes, preserving the environment and natural resources, increasing GDP growth in the agricultural sector by 3.7% and increasing the Farmer Terms of Trade Index (NTP) by 115‑120 in 2014.

   (Original emphasis.)

1. Immediately after the quota was set, Mr Ackerman (MLA) was recorded as having conveyed that “the Ministry of Agriculture’s calculations for quota are based directly on the results of the cattle survey along with projected local consumption”: CBD352 at 9682 [2].

2. Mr Ackerman was apparently critical of the methodology used in calculating the quota and considered that the “Ministry of Agriculture’s high estimates [of cattle numbers] are likely to be driven by a desire to appear to be meeting the self sufficiency goals in the national blueprint”: CBD352 at 9682 [2]. However, this does not gainsay that Indonesia set its quota by reference to its views about domestic supply as informed by the census results, which it accepted. On 20 December 2011, Mr Michael Finucan (MLA) sent an email to DAFF which stated that “officials have been adamant in reporting Indonesia is close to self‑sufficiency and can supply 80% of the presumed demand”: CBD995 at 38570.

3. As of 19 March 2012, the Australian perspective was that the significant decrease in “import permits for 2012 for boxed beef and live cattle [was] part of [Indonesia’s] goal for self‑sufficiency in beef by 2014”: CBD1013 at 38703. It was recognised that “Indonesia’s resentment over the lack of consultation ahead of the 2011 live cattle export suspension continues to surface”, but no connection was drawn between that fact and Indonesia’s setting or enforcement of quotas: at 38703. Rather, the Australian perception was that “Indonesia has determined the level of imports for 2012 based on Government projections of domestic supply and demand”: at 38752.

4. On 18 May 2012, the Assistant Secretary of the Bilateral Trade Branch of the Trade and Market Access Division of DAFF reported in a Minute to the Secretary of DAFF (CBD1031 at 38848):

   The 2011 [sic: 2012] quota [at 283,000] 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.

5. The perspective of the Australian Embassy in Jakarta was that the quota was consistent with the Blueprint: CBD1046 at 38912.

6. Likewise, DFAT’s perspective was that the quota was consistent with the Blueprint. In a document dated 16 July 2012, it was said (CBD1050 at 38921):

   The quota has been reducing each year since the self‑sufficiency policy was introduced, and the current quota for imports corresponds with the blueprint. The quota is supposedly equivalent to 17 per cent of national demand in 2012 and we understand this will be reduced to 10 per cent of national demand in 2013 (based on the figure of each Indonesian consuming 1.98 kilograms of beef per annum).

7. It remains to mention some other aspects of Dr Krisnamurthi’s evidence relied upon by Brett Cattle.

8. Dr Krisnamurthi gave evidence that he was a part of the discussions at meetings where the proposed quotas for live cattle imports were discussed – see, for example: T225–7. Brett Cattle relied in particular on the following aspect of his evidence (T225.31–40):

   MR WITHERS: Okay. And what decision was taken about the size of the quota for 2012?

   DR KRISNAMURTHI: I think the – the key decisions is not mainly on the quotas, it’s mainly on the strategic approach by Indonesian [G]overnment, which is try to diversify our supply, and, of course, learning from the prior assessment that importations of live cattle come from country outside Australia is – is inefficient, is too expensive, and we are talking about Brazil, Mexico, United States, is much more expensive than – than Australia. Then we decide that diversification is not only countries but also product, so we decided to – to open up more on frozen meat.

9. Brett Cattle also referred to the following evidence given by Dr Krisnamurthi (T226.13–24):

   MR WITHERS: … [T]here was a significant drop in the quota as between 2010 and 2012, do you recall the reasons for that?

   DR KRISNAMURTHI: Yes, the reason is try to diversify the supply, not only for the sources in terms of countries, but also the type of product.

   MR WITHERS: I see. And why was there a need to diversify?

   DR KRISNAMURTHI: Yes. Again, we need to manage the uncertainty. We – we realise that we cannot 100 per cent depend on – on the supply from Australia, and we cannot be sure that the kind of policy, like the banning of the export, cannot be happen again.

10. Dr Krisnamurthi’s evidence set out above appears to imply that it was known (or became clear) that Indonesia could not import live cattle from the countries then being considered because of the inefficiencies and expense and, therefore, the decision was made to “open up more on frozen meat”: T225.34–40. That evidence is directly contradicted by the decision taken, which was to decrease the quota for both live cattle and boxed beef. Dr Krisnamurthi’s recollection on this topic, if his evidence is to be understood in the way mentioned, could not have been correct.

11. Further, it is improbable that the key decision was “not mainly on the quotas”: T225.34–40. That was the very purpose of the meetings and setting the quota was the result of the meeting. I do not accept that the “uncertainty” about what Australia might do in the future affected the level of the quotas set for either the 2012 or 2013 year. Indonesia did not import live cattle from other countries and is unlikely to have been able to do so in the short term. According to Dr Krisnamurthi, it was known that this was uneconomical: T225.34–40; T291.40–292.2. Indonesia did not in fact diversify its supply away from Australian live cattle and, indeed, it decreased its quota of boxed beef. I do not accept Dr Krisnamurthi’s account as accurate. That his recollection is inaccurate is unsurprising given the passage of time. In the absence of there being any actual diversification, the more likely explanation for the decreased quota, for both live cattle and boxed beef, is that those responsible for the decision considered the balance of Indonesia’s needs could be met from domestic sources consistently with what was suggested by the census results.

    Brett Cattle’s Reliance on the Revised 2010 Strategic Plan

12. As to the Revised Plan, issued on 2 December 2011, Brett Cattle made two essential points, the first relating to changes to the “Foreword” and the second related to the fact that funding was increased: ACS[69(c)]; CBD414.1 at 21498.

13. The Foreword referred to the Revised Plan and the four main targets and included (CBD414.1 at 21498):

    In connection with changes in the organisational structure and work procedures of the Ministry of Agriculture as stated in Minister of Agriculture Regulation [61 of 2010], changes in the global and domestic strategic environment; refocusing future programs / activities to achieve the four success targets; improving output / outcomes with more measurable and SMART (Specific, Measurable, Achievable, Relevant, Timely) indicators, as well as the Presidential Directive and the cattle census of 2011, the 2010‑2014 agricultural development plans and implementation have undergone many adjustments. For this reason, the Ministry of Agriculture considered it necessary to revise the Ministry of Agriculture’s 2010‑2014 Strategic Plan.

    (Brett Cattle’s emphasis.)

14. Brett Cattle emphasised the reference to “changes in the global and domestic strategic environment”, submitting that this was an “obvious” reference to the Second Control Order and surrounding events and compared that to what it described as the “fleeting” reference to the cattle census: T726.1–5. The reference to the cattle census is clear and direct and no more “fleeting” than the reference Brett Cattle emphasised.

15. The reference to the changed strategic environment, when read in the context of the Revised Plan as a whole, is unlikely to be a reference to the Second Control Order and surrounding events. Beef self‑sufficiency is not the predominant focus of the Revised Plan. It is only one of the 12 programs with which it deals. The reference in the Foreword to the global and domestic strategic environment is more likely to be a reference to the fact that there had been changes in the domestic and global strategic environment since 2010, relevant to the many agricultural products addressed in the Revised Plan. These changes were one reason for revising the strategy which had been put in place on 28 January 2010 some few months after President Yudhoyono’s second cabinet was sworn in shortly after 20 October 2009. For example, as at December 2011, the Indonesian Ministry of Agriculture was at various stages of implementing two sets of regulations that would impose significant non‑tariff restrictions on horticulture imports: CBD1020 at 38810; 1013 at 38699, 38755. These were “likely to curtail severely imports of horticultural goods to Indonesia and impose significant costs and impediments on the horticulture trade”: at 38810.

16. The 2010 Strategic Plan summarised the Ministry of Agriculture’s “APBN [the National Budget] Financing Needs” in Table 5.1 (CBD412.1 at 20722). Table 5.1 addressed 12 funding areas. Item 4 in Table 5.1 dealt with two matters: beef self‑sufficiency and “increasing the supply of safe, healthy, whole and halal animal foods”. Table 5.1 contains a summary of total funding needs and must be read with Appendix 50: at 20793. Within Appendix 50, Item 6 addresses the “Program for Achieving Beef Self‑Sufficiency and Increasing the Provision of Safe, Healthy, Whole and Halal Animal Foods”: at 20816. Table 5.1 in the Revised Plan comprises, in modified form, what was Appendix 50 to the 2010 Strategic Plan and Item 6 in the Revised Plan comprises, in modified form, what was Item 6 in Appendix 50 to the 2010 Strategic Plan: CBD414.1 at 21611.

17. When Item 6 in Appendix 50 (in the 2010 Strategic Plan) is compared with Item 6 in Table 5.1 (in the Revised Plan), it is clear that more funding was allocated to the “Program for Achieving Beef Self‑Sufficiency and Increasing the Provision of Safe, Healthy, Whole and Halal Animal Foods” at 8,596.31 billion rupiah (2,598.88 + 2,858.77 + 3,138.66) for the 2012 to 2014 years (in the Revised Plan), compared to 6,571.20 billion rupiah for the 2010 to 2014 years (in the 2010 Strategic Plan): CBD414.1 at 21626. Brett Cattle correctly submitted that funding for Item 6 in Table 5.1 had been increased.

18. Brett Cattle submitted that the increase in funding demonstrated an accelerated pursuit of the beef self‑sufficiency program and submitted that the Second Control Order materially contributed to a decision to accelerate the program.

19. The Commonwealth referred to Dr Krisnamurthi’s evidence that, when the Blueprint was announced in January 2010 (the same month as the 2010 Strategic Plan), some of the program was without budget and was to be provided later through a budget adjustment: T836.24–837.6. His evidence included (T261.32–47):

    DR KRISNAMURTHI: Then the budget decision has been made within November or December, the Indonesian budget decision, including for the Minister of Agriculture, including for the DG for Livestock or Animal Husbandry. Then when the blueprint is announced, some of the program is without budget. There’s no budget yet. So we propose for a budget adjustment. And that’s happening March, April. And probably we will make the decision in July 2011 to make sure that the budget for the activities within the blueprint can be provided by the government.

    MS McLEOD: So the changes to the budget in 2010 – or, sorry ---

    DR KRISNAMURTHI: ’11.

    MS McLEOD: --- 2011 were because of the need to secure funding for the programs set out in this blueprint.

    DR KRISNAMURTHI: Yes.

20. The Commonwealth also submitted that the budget allocation (a reference to Item 6 in Table 5.1 in the Revised Plan) was “a rolled‑up line item” so that there was “no way to tell what the extra funds were allocated to”: T837.11–22.

21. The 2010 Strategic Plan had been issued almost two years before the Revised Plan. The Blueprint and the 2010 Strategic Plan were issued only a few months after the President’s re‑election and the formation of the new cabinet. The Blueprint had been based on “still inaccurate data on cattle population and meat production”: CBD410.1 at 17400. Some of the strategies in the Blueprint were unfunded and could not have been included in the 2010 Strategic Plan: T261.32–47 (Dr Krisnamurthi). As has been noted earlier, the Blueprint recorded that “Government funds that have been allocated to achieve the BSSP will continue to be increased”: CBD410.1 at 17387. In those circumstances, it is to be expected that the funding increased in the Revised Plan.

22. Further, there were significant changes and increases across the entire 12 items addressed in Appendix 50 of the 2010 Strategic Plan and Table 5.1 of the Revised Plan.

23. In total, the budgets in the Revised Plan increased by 18,282.97 billion rupiah for the 2012 to 2014 years: CBD412.1 at 20834; CBD414.1 at 21642. There were increases comparable to, or larger than, the increase in respect of Item 6 in other areas of the budget. For example, Item 3 was the “Program to increase the production, productivity and quality of food crops to achieve self‑sufficiency and sustainable self‑sufficiency”’. In the 2010 Strategic Plan total funding for the 2012 to 2014 years was 4,677.21 billion rupiah: CBD412.1 at 20800. The funding for Item 3 in the Revised Plan was 12,355.97 billion rupiah: CBD414.1 at 21616. The shifting budgetary allocations in other agricultural areas, particularly the increases, is what one would expect to see, and suggests that the Revised Plan was introduced in the ordinary course, consistently with what one would expect.

24. Although Brett Cattle was right to identify an increase in expenditure in Item 6 of the 12 items in Table 5.1 (previously Appendix 50), consistently with what one would expect, it is important to recognise that Item 6 addresses more than beef self‑sufficiency: CBD414.1 at 21626. The funding in Item 6 related both to the 2014 BSSP and “increasing the supply of safe, healthy, whole and halal animal foods”: at 21626. Thus, it addresses “meat production” and “livestock” generally, in addition to making specific mention of beef, buffalo, chicken, milk and eggs: at 21626.

25. The bulk of the additional funding in Item 6 of the Revised Plan, compared to the 2010 Strategic Plan, was directed to an increase in the quantity and quality of livestock semen and breeding stock, being Item 6.1: CBD414.1 at 21626. Item 6.1 is not solely concerned with beef cattle, although Item 6.1(4) related specifically and only to female cows and buffalo. Table 3.6 (in both the 2010 Strategic Plan and the Revised Plan) makes clear that the “7 superior livestock commodities” were beef, buffalo, goat/lamb, pork, chicken, duck and dairy cows: CBD412.1 at 20671; CBD414.1 at 21559. It is clear from the two pages which follow Table 3.6 (and the balance of the 2010 Strategic Plan and Revised Plan) – for example, the policy of “increasing the availability and quality of sperm and semen” – that the funding in Item 6.1 relates to all livestock, not only cattle: at 21559–60. Similar observations may be made about the balance of the sub‑items within Item 6 which explain the total funding referred to in Item 6. There is no doubt that beef self‑sufficiency was an important target of the increased funding, but it was by no means the sole target.

26. Brett Cattle also referred to the increase in production targets and self‑sufficiency ratio targets in the Revised Plan.

27. The Revised Plan set an average annual increase of 7.49% for beef, compared to 7.30% in the 2010 Strategic Plan: CBD414.1 at 21559; CBD412.1 at 20671 (although the Revised Plan also gives other rates such as 7.13% at 21548, 21550, 21570, 21656 and 7.4% at 21586, the former of which appears to refer to beef and buffalo combined).

28. The Revised Plan increased the target beef self‑sufficiency ratio for 2012, 2013 and 2014 compared to the 2010 Strategic Plan. The Revised Plan set targets for domestic beef production at 82.5% for 2012, 86.2% for 2013 and 90.3% for 2014: CBD414.1 at 21626; CBD414 at 21328; MFI 16. The corresponding targets in the 2010 Strategic Plan were 80.5%, 85.29% and 90%: CBD412.1 at 20816.

29. The Commonwealth submitted that the revised domestic production targets were more likely to be a response to the cattle census: T838. This submission should be accepted. One would expect the domestic production ratios to be increased in the Revised Plan in light of the new data which had been obtained in the census. There would be no rational basis not to change those figures given the Blueprint had assumed only 12.61 million cattle, while later information after a thorough census had revealed a higher cattle population. The census was expressly mentioned in the Foreword to the Revised Plan. This conclusion is further supported by the fact that, as one would expect given the higher cattle numbers, the Revised Plan increased the target ratio for domestic beef contribution to national meat production from 19.8% (2012), 20.6% (2013) and 21.1% (2014) to 21.4%, 22.5% and 23.5%: CBD414.1 at 21626; CBD412.1 at 20816.

30. That the domestic production target was revised because of the census is also supported by a later publication, the Ministry of Agriculture’s 2014 Performance Report which stated (CBD468 at 25315):

    Efforts to increase domestic meat production through the Beef and Buffalo Meat Self‑Sufficiency Program (PSDSK) began in 2010 with the publication of the 2014 PSDSK Blueprint. Based on the results of the 2011 Beef Cattle, Dairy Cattle and Buffalo Data Collection (PSPK2011) conducted by Indonesia Statistics, the cattle and buffalo population figures were much higher compared to the previous Blueprint target figures. So the results of this data collection were used as a basis for recalculating local supply capabilities as outlined in the revised edition of the 2014 PSDSK Blueprint. In the supply and demand for beef/buffalo meat, as outlined in the revised edition of the Blueprint, there was a gradual reduction in the portion of cattle and beef imports which came into effect in 2012, namely from 19.5% to 17.5% (local 82.5%), in 2013 from 14.7% to 13.8% (local 86.2%), and in 2014 from 10% to 9.7% (local 90.3%).

31. The Second Control Order did not play any material role in the revisions contained in the Revised Plan. Further, the Second Control Order did not materially intensify, or accelerate, Indonesia’s pursuit of its beef self‑sufficiency program over and above what Indonesia would have done in any event in the Exceptions Order Scenario.

    Strict Enforcement of the 2012 Quota

32. As noted earlier, Brett Cattle submitted that the quota for 2012 was strictly enforced. This proposition should be accepted in that fewer cattle (276,295) were imported than the quota which had been set (283,000).

33. Brett Cattle submitted that “[t]his marks a change in the Indonesian Government’s approach, as in 2010 the Indonesian Government had announced that it would only issue 452,000 import permits, but by the end of 2010 there had been a total of 514,935 head of live cattle imported”: ACS[68(d)].

34. The circumstances in 2010 were quite different to 2012. In 2010, there was no quota system, and no quota was set at the end of 2010 for the 2011 year. On 28 July 2010, the Indonesian Government informed importers that import permits would only be issued to import 452,000 head of live cattle into Indonesia in 2010. This was not a formal quota. Further, this occurred in the context of the recent introduction of the 2014 BSSP and its strategies which included enforcement of existing, and development of new, import regulations. The quota for the 2012 year was the first quota ever set. It was set in compliance with new regulations, something which had been anticipated by the 2014 BSSP which contemplated the introduction of regulations and the control of imports, including through tariff and non‑tariff barriers.

1. Accordingly, “strict enforcement” of the quota could not be said to have marked a change to any existing approach to the treatment by Indonesia of formal quotas set by the Coordinating Minister after consultation. On the other hand, it may be accepted that Indonesia had, in 2010, permitted imports beyond the level of 452,000 which had been communicated by the Director General of Livestock in a letter dated 28 July 2010. This does not bear the significance for which Brett Cattle contends.

2. As the facts set out above demonstrate, Indonesia considered increasing the 2012 quota during the 2012 year – see, for example: CBD1017. This involved discussions between Ministries and it is tolerably clear that, in 2012, the Ministry of Trade and the Ministry of Agriculture had differing views as to whether quotas should be varied: CBD1017 at [6]. At that time, the “key indicator for the Ministry of Trade that demand for beef was higher than available supply was rising prices, and they could see that prices were now going up”. For its part, the Ministry of Agriculture wanted to adhere to the self‑sufficiency projections: CBD1017 at [12]. The “Ministry of Agriculture … remained adamant that supply was sufficient” having regard to the census results: CBD357 at 9693 [3]; CBD1018 at 38805 [3].

3. The differences in opinion of the Indonesian Ministries at this time were resolved by bringing forward 5,600 tonnes of boxed beef from the boxed beef quota for the second half of the year, without altering the overall boxed beef quota: CBD1023 at 38817. No change was made to the live cattle quota: at 38817. Indonesia’s continued consideration of whether the quota should be altered was conducted by reference to a re‑examination of domestic supply conducted by a team led by the Ministry of Agriculture: at 38817 [3]. The Ministry of Agriculture maintained the view that supply was sufficient, and that beef self‑sufficiency had been achieved or was close – see, for example: at 38818 [6].

4. The Ministry of Agriculture was not the final decision‑maker on such issues, albeit its contribution to the decision and influence was evidently significant. Ultimately, increases in quotas were a difficult political decision given the government considered it needed to be seen to be protecting the interests of farmers: CBD1078 at 39285 [6]; CBD1087 at 39333 [8] (an observation made in relation to the quota for 2013, but equally applicable to 2012). In 2012, it was reported “that beef had become intensely politicised and was now the flagship product for [Minister] Suswono’s claim that progress had been made towards food self‑sufficiency” because “of the five key food commodities identified in the self‑sufficiency blueprint, only beef showed any evidence that production had increased”, referring to the census: CBD1033 at 39332 [6].

5. The evidence does not establish that the 2012 quota was adhered to or was strictly enforced for reasons associated with the Second Control Order. Rather, the evidence indicates that the quota was adhered to because that was the number of cattle which the Indonesian Government considered should be imported consistently with its 2014 BSSP as it then stood.

6. The level of Indonesia’s adherence to the quota it set for 2012 would not have been different in the Exceptions Order Scenario.

   Conclusions in respect of the 2012 Year

7. The quota for 2012 was set primarily by reference to the 2014 BSSP (which had been introduced in January 2010), as modified (including by the Revised Plan), and Indonesia’s view about its likely domestic supply capacity for the 2012 year, informed by the census results. The live cattle quota was reviewed throughout the year and the decision taken that it need not be altered.

8. The Second Control Order did not materially intensify or accelerate Indonesia’s pursuit of its beef self‑sufficiency program (that is, the 2014 BSSP as it stood from time to time). Nor did it relevantly alter the level at which the 2012 quota was set or the degree to which it was enforced.

9. Further, it is difficult to see that Indonesia would have acted differently in the Exceptions Order Scenario, even if the Second Control Order did play some small material causal role in the setting or enforcement of the 2012 quota (which it did not). The Second Control Order came as a shock to Indonesia and reinforced the view it already held that it was in Indonesia’s interests to pursue beef self‑sufficiency. Indonesia’s reaction to the First Control Order was not as marked, but this only banned exports to 12 identified abattoirs. It does not follow from this fact that Indonesia would not have reacted negatively to an Exceptions Order. An Exceptions Order would have been implemented “in an orderly way after seeking to gain the cooperation of the Indonesian Government and others”: LJ[405]. Such an order would have involved a total ban with the power to grant exceptions. This would have been significantly more disruptive, and involved a greater threat to Indonesia’s immediate beef supply, than the First Control Order. Consultation before implementation would have resulted in the Exceptions Order not coming as a shock, and the fact of consultation would have lessened or eliminated the offence taken, but there is no good reason to think that such an order would have had any meaningfully different consequence in terms of Indonesia setting and enforcing quotas than the consequence in respect of those matters in the Second Control Order Scenario. Brett Cattle expressly did not contend that the quotas for the 2012 and 2013 years were by way of retaliation or retribution: T713.37–40. It might also be observed that Brett Cattle did not seek to establish through detailed evidence of any of the witnesses how or why the reaction would have been materially different with respect to quota levels and enforcement in the hypothetical Exceptions Order Scenario compared to the Second Control Order Scenario. The Court does not draw any adverse inference about this, recognising it is always difficult to establish what would have occurred in hypothetical circumstances and also recognising, in the applicant’s favour, that it has been placed in the position it has by conduct of the Commonwealth which has been held to be wrongful.

10. The hypothetical Exceptions Order is likely also to have reinforced the view Indonesia already held that it was in its interests to pursue beef self‑sufficiency with the vigour it had been pursued since January 2010.

11. The central matter that changes in the Exceptions Order Scenario is that, instead of a total ban, there would have been a total ban with the power to permit exports by way of exception. All of the other matters remain the same. Four Corners would have aired its program in a context where Indonesia was vigorously pursuing a reduction in imports. Exports to Indonesia would have been seriously affected by a total ban with the power to grant exceptions. Indonesia would have had to take action by way of improvements to animal welfare to resume the usual trade relations and to seek to avoid similar situations occurring in future. Australia would have introduced an ESCAS, albeit somewhat earlier than it did. In the Exceptions Order Scenario, there would have been a risk of further or similar interruptions in the future, particularly if the level of improvement in Indonesia’s abattoirs was not achieved as quickly or as well as it was in the Second Control Order Scenario. Indeed, further animal welfare issues were filmed and raised in early 2012 at four facilities in two locations in Jakarta – see: CBD1013 at 38753; CBD1022 at 38815; CBD1031 at 38847–8; CBD1036 at 38867. The response to these may have been different if the Second Control Order and its consequences had not occurred. There may have been more animal welfare issues raised if the Second Control Order had not been made because it is likely that, in the Exceptions Order Scenario, the actions taken to address the issues raised would have occurred differently and potentially at a slower rate than the relevant issues were in fact addressed. The hypothetical Exceptions Order may have been in place for longer than the Second Control Order which was repealed after about a month.

12. These issues do not need to be pursued at length because, as has been mentioned, the Second Control Order did not materially contribute to the level of the 2012 quota or the degree to which that quota was enforced.

    Conclusions in respect of the 2013 Year

13. Brett Cattle did not submit that material events occurred between the time the 2012 quota was set and the time the 2013 quota was set which could found a conclusion that, although the 2012 quota might not have been affected by the Second Control Order, the 2013 quota was so affected. Rather, the arguments referred to earlier were, in substance, advanced also in relation to the 2013 year.

14. The contemporaneous documents referred to above indicate that the quota for the 2013 year was set by reference to Indonesia’s considered view about its capacity to supply beef from domestic sources, informed by its view as to its cattle population.

15. Again, there was a difference in view between Ministries: CBD1078 at [8]. On 4 December 2012, an Australian Embassy cable reported (CBD1078 at 39285 [5]):

    Indonesian Government ministers are increasingly concerned at the rising cost of beef and the potential effect on inflation. Only Agriculture Minister Suswono is still arguing against more imports, stating the need for self‑sufficiency. Suswono’s priority is protection of the farmers’ short‑term interests, in line with the politics of the PKS party, which has a disproportionate influence over agriculture policy in Indonesia. For Suswono, high beef prices for Indonesian middle‑class consumers is a positive development because it means more profits for his constituents.

16. On 6 December 2012, an Australian Embassy cable reported (CBD1083 at 39308 [7]):

    Kiranayanti, [the Deputy Director of the] Australia desk [at the Indonesian Ministry of Trade] told us the Ministry of Trade was well aware of the shortage of beef, but said the difficulty lay in finding a diplomatic way of selling the message to the Indonesian people (ie farmers) that imports were needed. She said Vice Minister for Trade Bayu Krisnamurthi had told her that Indonesia needed to do three things to manage the beef shortage: 1. increase imports for processed meats, such as that used in meatballs (bakso); 2. work harder in genetics through the import of cattle semen; and 3. raise investment levels particularly in integrated slaughterhouses.

17. Dr Krisnamurthi became the Indonesian Vice Minister of Trade on 19 October 2011: SOAF 2 at [7(b)]. Dr Krisnamurthi did not suggest that the Second Control Order was a consideration in respect of the 2013 quota. He was asked “what factors were relevant to the determination of what the quota should be” for 2013: T227.43–4. He responded at T227.46–228.4:

    We evaluate the situation in 2012. And in our system, every quarter we evaluate the quota, whether or not we should increase it or decrease it. And we see that the quota in 2012, I think – I believe it’s about 250, 260,000 head is sufficient because of the importation of non‑live cattle. And so I remember the discussion that we should maintain that, and at the same time we also saying that we increase the effort on domestic production.

18. On 14 December 2012, an Australian Embassy cable reported (CBD1087 at 39333 [8]):

    Jusuf [the Special Adviser to the President on Food Security] said 35 percent of Indonesia’s working population were farmers and a large proportion of them were living under the poverty line. This dynamic 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 farmer’s interests. But he again acknowledged that 100 percent of the population were consumers, and that the Government needed to look after their interests by keeping prices affordable. He said it would be important to change livelihoods so less of the population was dependent on agriculture for a living.

19. None of this suggests any material contribution by the Second Control Order to the decision to set the quota at the level it was set for 2013. Rather, the quota decision reflected Indonesia’s pursuit of the 2014 BSSP in the context of Indonesia’s political, social and economic environment. It is clear from the facts set out earlier that the 2013 quota was not enforced for a substantial part of 2013. The evidence does not lead to a conclusion that the 2013 quota was strictly enforced in the first part of 2013 as a result of the Second Control Order.

20. Further, for the reasons given in relation to the 2012 year, it is difficult to see that Indonesia would have acted differently in the Exceptions Order Scenario, even if the Second Control Order did play some small material causal role in the setting or enforcement of the 2013 quota (which it did not). As with the 2012 year, Brett Cattle did not seek to establish through detailed evidence of any of the witnesses how or why the reaction would have been different with respect to quota levels and enforcement in the hypothetical Exceptions Order Scenario compared to the Second Control Order Scenario.

    Quantification

21. Given that the Second Control Order did not materially contribute to the levels of the 2012 and 2013 quotas, or the strictness of enforcement of those quotas, it follows that no additional cattle would have been exported in those years in the Exceptions Order Scenario.

    CONCLUSION

22. For these reasons, no additional cattle would have been exported to Indonesia in 2012 and 2013 in the Exceptions Order Scenario. Both parties asked the Court not to make substantive orders in relation to the separate question until after these reasons for judgment became available. That is the appropriate course.

I certify that the preceding five hundred and fifty-nine (559) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.

Associate:

Dated:       5 June 2025