No legal solutions for Indonesia in battle at the live cattle corral

The government recently announced a ban on live cattle exports to Indonesia. There had been initial reports that the ban would be in place for a maximum period of 6 months although examination of both the press release by the Minister  and the latest (as at the time of writing) utterances of the Prime Minister  do not refer to a period of time but rather trade resuming 'when we are certain industry is able to comply with that supply chain assurance.'

Although caucus recently passed a motion calling for the cessation of live cattle exports until all slaughterhouses:  comply with the international OIE standards, consider the use of stunning and are subject to ongoing independent monitoring; just what constitutes compliance and suitability to undertake the role of an independent monitor remain undefined. No doubt the cattlemen of northern Australia and their peak bodies - Meat and Livestock Australia, LiveCorp and the North Territory Cattlemen's Association are frantically trying to solidify both those concepts in consultation with the government.

The reaction in Indonesia has been relatively measured. Officials have stated that Indonesia will respect the ban and there has been talk of making up the numbers with New Zealand or South American cattle even though sourcing cattle from either country would result in some delay whilst the logistics and quarantine protocols are sorted out.

What has been a little bombastic is the posturing by the Indonesian Deputy Agriculture Minister Bayu Krisnamurthi. He has threatened to submit a complaint to the World Trade Organisation alleging that the ban is 'discriminative' (sic) and thus presumably invalid. Minister Krisnamurthi should have run this course of action by his legal advisers before making public pronouncements regarding the ban. If he had he may have found that not only will there be a lengthy delay in obtaining a final decision but the law may not favour his position.

According to material published on the WTO website the average time between initiating what the WTO calls a consultation and a binding decision is a year and 3 months. Whilst that may be quicker than some dispute heard in a domestic court it is far too long in the context of a political and trade dispute. What are the abattoirs and more importantly Indonesian consumer to do in the meantime? Source another form of protein? Raise more domestic cattle? A fully litigated dispute is no place for a matter as urgent as securing foodstuffs.

Legally the picture appears no more favourable. The Indonesian government would presumably allege that Australia has violated Article 2.3 of the Agreement on Sanitary and Phytosanitary Measures, one of a number of agreements which bind members of the WTO pursuant to Article XVI.4 of the WTO Agreement. Article 2.3 provides 'Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjusitifiably discriminate between Members where identical or similar conditions prevail....'. Indonesia would argue that conditions in Kuwait (the subject of similar shocking revelations in December last year on The 7.30 Report) are similar or identical to those in its territory and thus the ban arbitrarily or unjustifiably discriminates against it.

If memory serves me correctly the footage used as the nucleus of the story on The 7.30 Report was of sheep being loaded into the boot of private cars to be taken and slaughtered at individual homes in honour of the Eid festival, not of commercial slaughter houses employing workers in what ought to be an industrial process. You would think that there were further differences which any Australian lawyer working for the government would trumpet long and loud to those adjudicating the case in an effort to distinguish the conditions in Indonesia from those prevailing in Kuwait.

Indonesia may also run into trouble in proving that the ban was arbitrary or unjustifiable. One look at the footage aired on Four Corners would put pay to the suggestion that the ban could not be justified; Eye gouging, whipping with rope, breaking legs and multiple cuts to a cow's throat stir sympathy in the most hardened of people.

However, there may be a glimmer of hope for the Indonesians in the notion that the ban was arbitrary. It seems to have been put in place hastily and in response to pressure being brought to bear on the relevant Minister by his colleagues who in turn were subject to a deluge of email, letters and phone calls by their constituents urging an immediate cessation of exports to Indonesia. However the government will no doubt point to correspondence flowing from the Minister's office to relevant industry bodies urging them to put in place appropriate measures to prevent unnecessary cruelty. When industry responded with an inadequate plan that seemed to be all about risk management as opposed to genuinely improving animal welfare it was only a matter of time before a public scandal necessitating a complete ban would occur.

If the Indonesian government wants the ban removed it ought to stop making public pronouncements and instead have a chat with the people smugglers. After all, their businesses remain profitable despite multiple attempts at a coherent policy response to an extra-territorial problem. This government gives every indication of travelling the same path concerning live cattle export.