Electpark Pty Ltd & Anor v Ministry of Fair Trading

[2000] HCATrans 475

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S97 of 1998

B e t w e e n -

HERIJANTO (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry
  Sydney  No S36 of 1999

B e t w e e n -

MUIN (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry
  Sydney  No S89 of 1999

B e t w e e n -

NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 17 AUGUST 2000, AT 9.31 AM

(Continued from 19/7/00)

Copyright in the High Court of Australia

___________________

MR M.A. ROBINSON:   If the Court pleases, I appear for the plaintiffs in all three matters. (instructed by Adrian Joel & Co.)

MR J. BASTEN, QC:   If the Court pleases, I appear for the second and third defendants in each, thank you. (instructed by the Australian Government Solicitor)

HER HONOUR:   Thank you.  Yes, Mr Robinson.

MR ROBINSON:   Your Honour, hopefully for the last time, we have a joinder motion.  We filed in Court yesterday an affidavit of Adrian Phillip Joel, sworn 16 August 2000.  We have done the other side the courtesy of asking whether or not their client would consent and they have said they have standing instruction not to consent.  The people that we wish to join are named and set out in the annexure to Mr Joel’s affidavit.

HER HONOUR:   There are a lot of them this time.

MR ROBINSON:   There is about 200 or so, 240 I am instructed, your Honour.  We have the statements of claim and the schedules in respect of each of these persons in Court in a moment, they are in my chambers, they are being brought here.  They can be filed immediately, today.  The draft orders that we ask your Honour to make are at annexure A.

HER HONOUR:   Yes, thank you.  Mr Basten, do you wish to say anything?

MR BASTEN:   We do not consent, but we do not wish to say anything, your Honour.

HER HONOUR:   Yes, thank you.  Very well, there will be an order in accordance with the draft short minutes of orders marked “A” and annexed to the affidavit of Adrian Phillip Joel of 16 August 2000.

MR ROBINSON:   If the Court pleases.

HER HONOUR:   Yes.

MR ROBINSON:   Your Honour, in relation to the main proceedings, I am happy to say that the parties have come a very long way since the last occasion and there is a document of agreed facts which can be handed up to your Honour.  In addition to that I have a number of written submissions that I would ask your Honour to take into account, and I do not think from either side that any oral evidence will be required.

HER HONOUR:   If that is correct, the parties are to be congratulated, counsel is to be congratulated.

MR ROBINSON:   Thank you, your Honour.  In terms of the – there are some factual issues that the plaintiffs seek to agitate and the passages that we seek, your Honour, to make will be included in the draft agreed facts, as well as in documents that I will ask your Honour to consider.  The other side have also been kind enough to prepare a draft stated case which I received last night, I have looked at it and I have only received it in relation to Herijanto, but I can say, your Honour, it does look very promising, with respect to my learned friend, and I would think that with some minor adjustments which can be made with your Honour’s involvement or between the parties, I am fairly confident that a draft stated case can be settled fairly quickly.

HER HONOUR:   Excellent, thank you.  You are going to hand up, then, are you, your ‑ ‑ ‑

MR ROBINSON:   I think my learned friend might have a clean set.  I hand up to your Honour three documents, one in each proceedings headed “Draft Statement of Facts Dated 16 August 2000”. 

HER HONOUR:   I need not mark them, need I?  Yes, thank you.

MR BASTEN:   Is it convenient also to hand up the draft case stated, your Honour?  I have drafts in Herijanto and Muin.  My friend has indicated there may be some variations perhaps to the formulation of the questions.  Would it assist your Honour, though, to have copies of those?

HER HONOUR:   I think it would, yes, thank you. 

MR ROBINSON:   Your Honour, to go with the agreed facts document, I would also seek to add in – and I apologise, your Honour, it has paragraph numbered 18 on it, but that does not accurately indicate where it should go in the document – but the paragraphs that I tender now come from the affidavits of the three delegates in relation to Muin, Herijanto and Lie, and I seek to insert into the draft agreed facts – and it was too late physically to do it this morning, your Honour – those passages of my learned friend’s delegates’ evidence that I tender as admissions, which we say should go into the draft agreed facts.  I do not think it is contested by the other side, your Honour, and I understand from discussions with my learned friend this morning that the defendants will not be reading any evidence at all, and that he will rely entirely on the agreed statement of facts.

In the plaintiffs’ case, we do rely on some evidence relating to documents that I need to take your Honour to and I will come to that, but in terms of having a fuller agreed facts, we would seek to add those paragraphs to each of the statements of agreed facts.

HER HONOUR:   Yes, I see where it goes in the Herijanto matter.  Are you happy with the inclusion of those?

MR BASTEN:   Yes, I have obviously no objection, it is simply material out of our evidence and it saves me reading affidavits at all.  I just suggested my friend tender it in that form this morning because I am not sure whether it is in the correct form sufficiently to indicate what the fact is that is agreed, but perhaps we can deal with any necessary terminological changes and simply insert them in the draft agreement.  It is our evidence, we do not object to it.

HER HONOUR:   Yes, thank you.

MR ROBINSON:   In a similar fashion in relation to the statement of agreed facts is yet another fact that is only in form in relation to the Herijanto Case which is agreed and has not yet been incorporated into the agreed facts documents, your Honour.  It is a fact which will go to my submissions this morning on inferences, and if I could hand that up to your Honour.  It is only in relation to Herijanto, but an equivalent will be drafted and can be drafted in relation to both Lie and Muin and a suitable place can be found – and we have not found it yet, your Honour – to include that in the statement of facts, and my learned friend, as I understand it, would consent to that.

HER HONOUR:   Yes, thank you, very well.  At some stage somebody in your solicitor’s office will make a complete document with these, I take it?

MR ROBINSON:   That can be done, your Honour.

HER HONOUR:   There is no urgency.

MR ROBINSON:   That will take about an hour or two to get that together.

HER HONOUR:   Just at some stage, not necessarily today.

MR ROBINSON:   It certainly will be presented as a consolidated document.

HER HONOUR:   Yes, thank you.

MR ROBINSON:   Just while I am dealing with paper, I have a summary of submissions in written form.  The first one relates to some of the inferences that we would ask your Honour to draw, or that flow from what your Honour will see as not agreed in the draft agreed statement of facts.  So the way that document is cast, those paragraphs in respect of which the words “not agreed” do not appear, they are agreed; and the passages where the words “not agreed” appear, they are matters which I would wish to agitate today or your Honour may consider them appropriate to refer to the Full Court for determination, but they are factual matters that I would like to address your Honour on.  I hand up to your Honour a summary submission on inferences to be drawn and a summary submission on the actual Part B  documents which we say contain favourable material, and on what we term the adverse material which we say contains material adverse to the plaintiff’s case.

HER HONOUR:   They are Part B documents as well, are they?

MR ROBINSON:   No, our case is, in short, your Honour, that the adverse material, as we have termed it in Muin and Herijanto alone, did contain exactly that, material adverse to the plaintiff’s case which they were not notified of, and that founds the natural justice argument.

HER HONOUR:   Yes.

MR ROBINSON:   In relation to both Herijanto and Muin and Lie, and Lie alone in this respect, the Part B documents case depends on, particularly from the reply - this is the response to what your Honour might recall as the “so what” point, so what if the Tribunal did not read the Part B documents at the review on the paper stage and perhaps later on ‑ ‑ ‑

HER HONOUR:   You say that?

MR ROBINSON:   We say that there was some significance ‑ ‑ ‑

HER HONOUR:   You say that was breach of procedural fairness in so far as the letters indicated - might have suggested that they would?

MR ROBINSON:   We do, and in addition to that, we have the other argument that the Tribunal had a duty under 424(1) to look at the material, look at whatever was sent.  Now, the badness that is alleged in the plaintiff’s reply in each case on the Part B documents is essentially that some of the Part B material contained favourable material and, to some extent, that can be identified by looking at the names of the articles themselves, such as “Murder in Jakarta” and “Riots in Jakarta” and “Ethnic Chinese Discriminated” and so on, those are the sorts of headings.  The submissions I have handed to your Honour, and I may have to take your Honour to each document briefly ‑ ‑ ‑

HER HONOUR:   I have just remembered something.  Before you go further, I noticed yesterday that there was an affidavit sworn by Jill Toohey who is the Registrar of the Tribunal who is personally known to me.

MR BASTEN:   Yes.

HER HONOUR:   Does that cause any problems to any one?

MR BASTEN:   Not to us, though obviously she is on our side of the record.  She swore an affidavit as to discovery.  There is now no issue as to discovery, so I would think not, but certainly not from our side.

HER HONOUR:   No.

MR ROBINSON:   We have no problem, your Honour.

HER HONOUR:   Yes, very well, thank you.

MR ROBINSON:   The Part B material, the plaintiffs in each case hope to characterise that as favourable, so we are saying one category of documents, the Part B documents, has favourable material in it which the plaintiffs believed was sent to the Tribunal, considered by the Tribunal and it was not, we say.  In relation to the adverse material, it is a different kettle of fish altogether, and we say that they were truly adverse and never put to us.  I will come to those submissions in due course, your Honour.

Does your Honour require me to take your Honour to the pleadings at all?  I trust that your Honour is familiar enough with the case for me to, as it were, launch straight into the evidence that we rely on.

HER HONOUR:   That is right, I think that is sufficient, yes, thank you.

MR ROBINSON:   Thank you, your Honour.  There are a number of affidavits that I read.  The first one is the affidavit of Adrian Phillip Joel sworn on 27 March 2000 – that is the one contained in the large folder, your Honour – and it ‑ ‑ ‑

HER HONOUR:   Yes.  We will have to ascertain whether any parts of it are objected to and ‑ ‑ ‑

MR BASTEN:   Your Honour, I do not know why we are reading it because the agreed fact about what was in the discovery I thought would vitiate the need to refer to this material.  It is simply the affidavit which refers to the discovery.  I do not know that I have any objection to it, if it is all read, it is all read. 

HER HONOUR:   Well, it would seem to be sufficient if you draw my attention to those parts upon which you rely, rather than go right through the document.

MR ROBINSON:   Yes, your Honour.  Your Honour, I do not propose to go right through it.

HER HONOUR:   Yes.

MR ROBINSON:   I will take your Honour to those passages that we rely on and to the extent that we do so, it is set out in the summary of submissions on inferences to be drawn, in particular if ‑ ‑ ‑

HER HONOUR:   We have not yet got that affidavit, it seems to have been left in the Registry.

MR ROBINSON:   It was filed in a large white folder.

HER HONOUR:   It will be just a few moment, I think.

MR ROBINSON:   For the benefit of my learned friend, your Honour, I can say that at the bottom of page 3 of my written submissions on inferences to be drawn and at the top of page 4 are the parts of the affidavit that we rely on, the documents themselves.

MR BASTEN:   Yes, I am sorry, your Honour.  Perhaps it would be worth saying that you will not have had a chance to look at the draft statement of agreed facts, but at the back there is a series of footnotes.  What is anticipated is that each of the documents which are thought to be relevant will be incorporated into a separate bundle.  My misunderstanding, I think, flows from that.  Obviously the documents at present are only to be found as annexures to affidavits. 

HER HONOUR:   Yes, thank you.

MR ROBINSON:   If I could take a moment, your Honour.

HER HONOUR:   Yes.

MR ROBINSON:   There is one other document, your Honour.  Your Honour, for the purposes of the matters going to the inferences that I seek to agitate today, and not necessarily for the purposes of those documents going to the Full Court on any stated case, I do need to tender to your Honour the exhibits to the three delegates’ affidavits that have been filed by the respondents and there are two exhibits in two of the matters and one exhibit in Lie that I now tender.  They have been filed.

MR BASTEN:   We have spare copies, if that is a more convenient course, your Honour.

HER HONOUR:   It might be, I think, yes.  We will mark them as separate exhibits, A, B and C, then.

MR ROBINSON:   Thank you, your Honour.  Your Honour, I am not suggesting that out of these documents will be carved an agreed bundle.  That can go to the Full Court, if necessary.  I tender exhibit MPB1 and MPB2 referred to in the affidavit of Malia Patosina Betts sworn 28 January 2000.

HER HONOUR:   Yes, for ease of reference, that will become exhibit A in these proceedings.

EXHIBIT:              Exhibit A…Exhibit MPB1 andMPB2 referred to in

affidavit of M.P. Betts sworn
       28 January 2000

MR ROBINSON:   Thank you, your Honour.  In Muin I tender exhibit MFD1 and MFD2, being the exhibits to the affidavit of Mary Frances Denning sworn 27 January 2000.

HER HONOUR:   Again for ease of convenience, that will become exhibit B for the purposes of this hearing.

EXHIBIT:              Exhibit B…Exhibit MFD1 and MFD2, being exhibits
  to the affidavit of M.F. Denning sworn
  27 January 2000

MR ROBINSON:   In Lie in tender exhibit ANH1, being the exhibit to the affidavit of Anthony Nicholas Houen affirmed 28 January 2000.

HER HONOUR:   That will become exhibit C for these proceedings.

EXHIBIT:              Exhibit C…Exhibit ANH1, exhibit to affidavit of
  A.N. Houen affirmed 28 January 2000

MR ROBINSON:   Thank you, your Honour.  Your Honour will see that the submissions on adverse and favourable materials refer to exhibit pages of the documents.  The only aspect of those documents I will be taking your Honour to, if your Honour wishes to entertain this submission at all – and I will explain that momentarily – is the Part B documents and the adverse material itself.

GAUDRON J:   Yes.

MR ROBINSON:   If your Honour will bear with me for a moment.  In addition, your Honour, I tender a letter to Mr Markus of the Australian Government Solicitor from Mr Robert Wilson, Director of Research Refugee Review Tribunal dated – it is a little obscure, but I understand it to be 12 April 1999, it is a two page document.

GAUDRON J:   That is not objected to?

MR BASTEN:   No, your Honour.

GAUDRON J:   It is discovered, I take it.  That will become exhibit D.  Should I read it at this stage?

EXHIBIT:             Exhibit D…Letter to Mr Markus dated 12 April 1999

MR ROBINSON:   Yes, your Honour.

GAUDRON J:   Thank you.

MR ROBINSON:   There is one other document which I do not tender but I hand up to your Honour for the convenience of the Court in working through the Part B documents.  Your Honour will recall on the last occasion I said there are number of common documents that were Part B documents.

GAUDRON J:   Yes.

MR ROBINSON:   In fact, in Lie and Herijanto the Part B documents are almost identical, as indeed are the delegates’ decisions almost identical in terms.  To avoid making submissions in each matter, I will make submissions going to the documents and your Honour will see from the schedules that I hand up now, and I give a copy to my learned friend, that, for example, on the first page in Herijanto there, document No 2 in Herijanto Part B list is also document 5 in the Muin Part B list and it also document 2 in the Lie Part B list.  So that I only need to make ‑ for me to ask your Honour to consider and rule on a Part B document as being favourable, I would only take your Honour to the document once and the document I have just handed to your Honour will explain where that document appears in each proceeding.

GAUDRON J:   Yes, thank you.  I will put it aside for the moment, shall I?

MR ROBINSON:   Thank you, your Honour.  That is all the paper, as it were, that I have for your Honour  ‑ ‑ ‑

GAUDRON J:   I am grateful.

MR ROBINSON:    ‑ ‑ ‑ all of the documents upon which the plaintiffs rely in terms of the evidence that has been filed by the plaintiff.  Due to the high level of co-operation between the parties that has occurred over the last few months, we are also satisfied that the agreed facts, to the extent they are agreed, happily reflect the plaintiffs’ respective positions as far as the evidence is concerned.  So I do not need to take your Honour to read the affidavit material that has been filed by the plaintiffs and your Honour can rely on the agreed facts document.  If I could take your Honour to, for example, the Herijanto statement of agreed facts.

There is one more bundle of paper that I sent to your Honour yesterday and that is a consolidated list of authorities.  Your Honour has that.

HER HONOUR:   Thank you.

MR ROBINSON:   That is mainly in respect of the inferences that we would ask your Honour to draw.  I should say at an introductory level the draft stated case that my learned friend has sent to your Honour and handed up this morning, it does make provision for the adverse material and the identification of the adverse material as being adverse as a factual question, that my learned friend would like your Honour to refer to the Full Court.  We say that that is a matter which we would ask your Honour to decide similarly in relation to Part B documents being characterised as containing favourable material.  That is not referred to at all in my learned friend’s draft stated case, but I would ask your Honour to make that finding as a factual finding now.

The reason I ask your Honour to do that is it would save the Full Court from being taken to each document in these proceedings.  So there are two main areas of inferences that I would ask your Honour to draw.  One of them I am forced to do so now in the sense that I think it is appropriate that your Honour deal with it, and that is the favourable and adverse materials characterisation of the documents.  The other main area of inferences that I would ask your Honour to draw are the subject of my written submissions on inferences and they are characterised broadly as a finding that we invite your Honour to make that the Tribunal did not consider the Part B documents at all.

Now, that might be a matter that your Honour might regard as appropriate for consideration by the Full Court.  If that is the case, I will not trouble your Honour on it today but I am ready to, as it were, in that I have the relevant authorities collected and I am ready to argue that those matters be dealt with before your Honour today.

HER HONOUR:   Well, I take it from something that was just handed to me that the parties are agreed that there is no evidence that they did consider them.  Is that right?  No direct evidence.

MR BASTEN:   Well, except for the decision of the Tribunal which refers expressly to some of them.

HER HONOUR:   Yes.  Yes, I see.  Well, I think I had better hear you fully, Mr Robinson, and really only when I have gone through the material can I ‑ ‑ ‑

MR ROBINSON:   Well, your Honour might still decide at the end of it in the second category to remit that.  Either way, I am content to run the argument.

HER HONOUR:   Well, I think it would be helpful to hear the matter out and then what happens at the end of the day will remain to be seen.

MR ROBINSON:   I appreciate that, your Honour.  If I could start with the favourable adverse materials.

HER HONOUR:   Yes.  Well, we will start with the favourable, shall we?

MR ROBINSON:   We will start with the favourable ones, your Honour.

HER HONOUR:   And they are in the favourable Part Bs?

MR ROBINSON:   I can show your Honour the context, in other words, I will take your Honour to the inference that we would ask your Honour to draw first, if that is convenient.  In the draft statement of facts in Herijanto ‑ your Honour will forgive me for the speed at which I am progressing because the document has been renumbered recently and I need to find the passage.

HER HONOUR:   Yes.  Well, there is no need to hasten overmuch because I am not as familiar with it as you are.

MR ROBINSON:   Well, your Honour, it is the draft statement of facts Herijanto dated 16 August 2000.  Basically I intend to address your Honour on those passages marked “Not Agreed” in due course.

HER HONOUR:   I am sorry, statement of facts.  I have got the wrong document.

MR ROBINSON:   The statement of facts, I am sorry, your Honour.

HER HONOUR:   Yes.

MR ROBINSON:   It is not consolidated but I will not be taking or addressing your Honour to any of the paragraphs and passages that are not consolidated into the document today.

HER HONOUR:   Yes.

MR ROBINSON:   Paragraph 11 your Honour will see, for example, is not agreed, that “The Practice Direction constituted a representation” in those terms.  I would ask that your Honour would make that finding as a matter of fact and your Honour will see from the draft stated case that my learned friend is going to ask your Honour to remit that question to the Full Court.  Paragraph 17(a), Ms Betts is the Minister’s delegate who made the original decision.  Paragraph (a) your Honour will see is not agreed, that we say the Part B documents were relevant to the review of Ms Betts decision by the Tribunal.

We say that that is a relevant fact for your Honour to find and that is by way of background only, not by way of something that your Honour must find, but something that we say is an appropriate foundation for paragraph 17(b) and (c), which is agreed, that the documents were considered by that person to be relevant to the review of her decision by the Tribunal. 

Paragraph 20 is not agreed and I will address your Honour on that by reference to passages from Mr Joel’s affidavit.     We say that it is plain from Mr Joel’s affidavit annexing relevant documents that the character of the CISNET database is as we say there.  So there will be some submissions in relation to paragraph 20 and the general character of the CISNET database.  I presume that it is not agreed ‑ ‑ ‑

HER HONOUR:   Is that paragraph 20 or 21?

MR ROBINSON:   Paragraph 20, your Honour.  Paragraph 21 is agreed.

HER HONOUR:   Well, let us – draft statements of facts 16 August 2000 ‑ ‑ ‑

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   I have got Muin, sorry.

MR ROBINSON:   Muin is largely identical but there are some significant differences and, yes, it is 21 in Muin that I was talking about, but 20 in Herijanto.

HER HONOUR:   Thank you.

MR ROBINSON:    Thank you.  We will be saying in relation to 20 that it is necessary background that your Honour understand what CISNET is made up of and I will come back to that, your Honour.  Paragraph 24 of the agreed statement is not agreed and ‑ ‑ ‑

HER HONOUR:   As again the representation ‑ ‑ ‑

MR ROBINSON:   Again a representation which I would ask your Honour to make to save the Full Court from doing it, but it is something that could be conveniently done by the Full Court.  I am not going to dwell on that.  I do not have a lot to say on that.  Paragraph 31 is agreed except for the words in brackets and I do non think a lot turns on it, your Honour, but we press for the words in brackets and the defendants do not agree that they are appropriate.  Not a lot turns on that.  Paragraph 33, the word “purportedly” is not agreed by the defendants but it is the plaintiff’s wish that the word stay for present purposes.

HER HONOUR:   I should not have thought a lot would turn on that either.

MR ROBINSON:   No, your Honour, and I do not have a lot to say on that.  Paragraph 34 is something which your Honour will be invited to refer to the Full Court as part of the stated case, that the Tribunal did not read the documents and that is something that I would ask your Honour to decide today or tomorrow at this hearing.  Paragraph 36 is not agreed and that is again in the representation category.

HER HONOUR:   In this representation category am I correct in thinking there is affidavit evidence from the plaintiffs that they ‑ ‑ ‑

MR ROBINSON:   Your Honour, Mr Joel’s affidavit and ‑ ‑ ‑

HER HONOUR:   No, from the plaintiffs.

MR ROBINSON:   ‑ ‑ ‑ and my written submissions ‑ ‑ ‑

HER HONOUR:   Will refer to that.

MR ROBINSON:   ‑ ‑ ‑ refers to it and it forms the basis for the plaintiff’s argument on both 34 and 40 of this document.  ‑ ‑ ‑

HER HONOUR:   Yes, thank you.

MR ROBINSON:   In paragraph 42(a), that is in relation to the country information listed at, schedule 2, now, that is the adverse material.  The schedule 2 of Muin and Herijanto is the adverse material.  The defendants do not agree that the documents were adverse material and it is that which I will address your Honour on in 42(a).  They do agree in that paragraph that the plaintiffs were not shown the adverse material or told of its substance or contents.

In relation to paragraph 45, which is not agreed, I will be making submissions and that is the favourable material or supportive material that I will be making submissions on first.  Then in respect of paragraph 48, which is not agreed, that is a matter of submission on the face of it, your Honour, which I will not spend much ‑ ‑ ‑

HER HONOUR:   That looks very much like one of the ultimate questions to be determined by the Court.

MR ROBINSON:   Well, your Honour, it is more in the nature of an argument.  We say if ‑ ‑ ‑

HER HONOUR:   Well, it does not seem to be a question of fact so much as a conclusion that you would advance by way of argument to the Full Bench.

MR ROBINSON:   Well, it is something which flows we say, your Honour.  It goes to the consequences to the plaintiffs.  It is set out in their reply and it goes to the “so what” point, as it were, that is raised by the respondents.

HER HONOUR:   Well, that is right.  Yes, I understand it, but prima facie at least – I will just alert you to this – it seems to me that that really is a matter for argument and to be decided by the Full Bench as part of the ultimate resolution of this matter.

MR ROBINSON:   I cannot say anything to that, your Honour.

HER HONOUR:   I mean, if you wish to say otherwise, but prima facie it seems to me that is where that matter comes.

MR ROBINSON:   We see it in that category as well, your Honour.  It may be something that your Honour may care to excise, but the same for paragraph 49, your Honour.  We say that is an appropriate fact to be considered, an appropriate consequence.  Again, it is in the same character as 48 and your Honour’s comments would apply to it.

HER HONOUR:   You may not even have to put it as highly as that by way of argument.

MR ROBINSON:   Well, certainly at paragraph 49(a) is supported on the evidence.

HER HONOUR:   Yes.  No, but I am looking at (b).  You would not have to establish “lost all prospects of ‑ ‑ ‑”

MR ROBINSON:   Well, we can say that in submission, your Honour.

HER HONOUR:   Yes.

MR ROBINSON:   It is just an appropriate place for that fact to appear in the facts as set out.  I would not lose sleep if 48 and 49 were not included, your Honour.

HER HONOUR:   Yes, thank you.  It is 49(b)?

MR ROBINSON:   Paragraph 49(b).

HER HONOUR:   Yes.

MR ROBINSON:   But 49(a) is covered pretty much in other paragraphs.  For example, 47(a), (b), (c) and (d) shows what the plaintiff would have done had the plaintiff been aware of certain things.  So 49(a) can stay in that form, but as for the rest of 49 and 48, it can go, your Honour, if your Honour is of that view and I have nothing further to say other than it seemed to me to be an appropriate place to put it in context, but we can deal with that by way of submission, if needs be.

HER HONOUR:   Yes.

MR ROBINSON:   Paragraph 51(a) in relation to the 423 submissions – I should say to your Honour the 423 submissions are nothing more than another part of the adverse materials.  So your Honour has seen that in relation to the adverse materials, paragraph 42(a), we say that, “The documents were adverse materials” back in 42(a), that is the schedule 2 adverse material documents, not the Part Bs.

Paragraph 51 relates to one particular document that was considered by the Tribunal.  It was a submission of the Minister, or the Secretary of the Minister’s Department, made to the Tribunal about the wretched situation in Indonesia at the time after the May 1998 riots where the Secretary to the Department submitted to the Tribunal in short that everything was fine in Indonesia – and I am not doing it justice – but said the State can protect its ethnic Chinese citizens, as they are called, in Indonesia and the Tribunal should make findings to that effect, that the State can protect its citizens, and, indeed, in these three cases that is what the Tribunal did find.

In relation to Herijanto, though, the submission was received by the Tribunal after the hearing and was never put to Mr Herijanto.  I should say that is his one and only name, your Honour.  He has no other names, just Herijanto.  But that was not put to him and that is agreed to in paragraph 51(b) and (c), but 51(a), it is not agreed that the 423 submissions related to the plaintiff’s case and I will take your Honour to that, but just noting that it is part of the adverse materials and a particular part of it.  Paragraph 51(a), we say it did relate to the plaintiff’s case and 51(d), we say the 423 submissions are appropriately characterised as adverse.

That is the line of country that I will be taking your Honour to.  In the first area that I wish to address your Honour on, it relates to the adverse/favourable arguments.  The favourable arguments derive from paragraph 45 of the ‑ ‑ ‑

HER HONOUR:   Which are we doing first, favourable material or adverse?

MR ROBINSON:   Well, your Honour, in the document I have handed to your Honour – that is the one with the three columns – it is headed “Plaintiffs’ Summary Submissions on Adverse/Favourable Materials”.  I put the adverse material there first.

HER HONOUR:   Is it?  Are we talking ‑ ‑ ‑

MR ROBINSON:   That is this document, your Honour.  It has three large columns on it.

HER HONOUR:   Yes.

MR ROBINSON:   I have put adverse materials first in relation to Herijanto then Muin and on page 3 it shows the favourable material.

HER HONOUR:   Yes.

MR ROBINSON:   So that favourable material and the submissions that follow on pages 4, 5 right through to 9, are the favourable material referred to in paragraph 45 of the draft facts in Herijanto and I can tell your Honour there are corresponding relevantly identical passages from the draft facts in the other two cases, so that the submissions I make now in relation to this favourable material relate to those as well.  So my submissions for the moment only go to 45 in Herijanto.

Could I ask your Honour to look at, in the Lie proceedings, only because this is the way I have examined the documents, your Honour, but they are substantially the same as Herijanto and I will take your Honour to the precise documents, but if your Honour could look at page 3 of the summary submissions in this regard.

HER HONOUR:   Wait a minute.

MR ROBINSON:   That is the three‑column document your Honour had a moment ago.

HER HONOUR:   Yes, yes.

MR ROBINSON:   Page 3 of that.  I will start with the favourable material.  Halfway down page 3 your Honour will see the heading “Lie Proceedings (including documents in Muin & Herijanto” Part B document No 2 “page 14, column 2”.

HER HONOUR:   Yes.

MR ROBINSON:   Now, if I could take your Honour to the exhibit in Lie.  I think it is exhibit 2.

HER HONOUR:   Or B, was it?  C?

MR ROBINSON:   It is exhibit B, thank you, your Honour.

MR BASTEN:   Are you in Lie or ‑ ‑ ‑

MR ROBINSON:   I am in Lie, so it must be C.  Exhibit C, your Honour.

HER HONOUR:   Yes.

MR ROBINSON:   Now, I am only taking your Honour to the Part B documents at this stage.  They appear from page 58.  The numbering is at the bottom right‑hand corner of the page.  It is headed “THE CHINESE OF SOUTH‑EAST ASIA”.  Does your Honour have that?

HER HONOUR:   Yes.

MR ROBINSON:   Now, that is a document – as presented here, it is an extract of the hard copy of the document.  What is on CISNET – and I will take your Honour to that ‑ ‑ ‑

HER HONOUR:   When you say it is an extract of the hard copy ‑ ‑ ‑

MR ROBINSON:   It is an extract of a hard copy but ‑ ‑ ‑

HER HONOUR:   It is not the full ‑ ‑ ‑

MR ROBINSON:   It is not the full document, I do not think, but what appears on – no, I withdraw that, your Honour.  It does appear to be the full document ‑ 39, 40 pages.  Yes, it does appear to be the full document.  What is on CISNET is not the full document and I will tender your Honour the CISNET version of that when I come to making my submissions on the integrity, as it were, of the CISNET database going to the statements of facts earlier.  But for the moment, this is the document which the other side say is the Part B document referred to.

We say the favourable material appears at page 14 of that document which is page numbered 71.  A discussion on Indonesia starts there.  I should say, your Honour, on page 67 of the bundle “ethnic Chinese” in the right‑hand column, at about 10 lines from the top, is defined to include ‑ ‑ ‑

HER HONOUR:   Page 67?

MR ROBINSON:   Page 67 of the document.  Page 10 of the original.  In the right‑hand column, first paragraph the sentence starting with a definition of “ethnic Chinese”.  It:

includes all persons of Chinese or part Chinese descent who would, at least in a cultural or family sense, identify themselves as Chinese, even though they may be citizens of another country and also identify with that country.

Now, all the three plaintiffs in these proceedings are ethnic Chinese.  Two of them are Christians and one of them is a Buddhist.  They are claiming as a primary part of their claim for refugee status in Australia that they are ethnic Chinese living in Indonesia and, indeed, born and living in Indonesia.  Now, at page 14 of the document, 71 of the bundle, there is a heading “INDONESIA” and then a square box in the right‑hand column.  That shows the exact proportion of ethnic Chinese living in Indonesia as at the time of the document, which is November 1992.

It shows that in the principal ethnic groups, Malay, Indonesian and the various break up of Indonesians as Javanese, Sundanese, Balinese and so on, and then Chinese is 2.7 per cent and then Indians and various tribal groups.  So the Chinese make up a 2.7 per cent minority ethnic group in Indonesia.  The other fact on that page in that box is that at the top in “CONSTITUTIONAL STATUS” that the government there has “strong military and presidential control”.

We say that those are two facts which are favourable to the plaintiffs’ case and we say that the plaintiffs’ case ‑ I should say before continuing, the plaintiffs’ case in all three matters involved two elements, one being that they were persecuted or that they fear persecution in Indonesia because of their ethnicity and in some cases their religion.  Herijanto and Muin both have religion ‑ Christian claims as well, but the primary one is the ethnicity.  We say that is one element of their case, that they fear persecution or were persecuted. 

The second element of their case in each matter is that the persecution that they fear in their home country is that the State cannot protect them from the persecution they complain of, so that the situation in the country as at the time the delegate and then the Tribunal comes to make their respective decisions involves those two elements:  consideration of the applicants’ individual claims and fears and, secondly, the consideration of the position in the applicant’s home country.  They are two facts, as it were, that need to be found by the Commonwealth decision makers in this regard and we say it is part of the plaintiffs’ case in each matter.  So there is material that would have helped them in some small fashion and they were entitled to rely on the fact that the Tribunal had it before it. 

If your Honour would turn the page to page 15 of the original copy, page 72 of the exhibit.  In the first column, on the left‑hand side, the fourth paragraph, it sets out there some of the history of the resentment against ethnic Chinese in 1974 when riots occurred.  It also sets out at the bottom of the page the first reference in the documents to “pribumi”, which means indigenous, and that is about the time in the 1980s that that word came into use and your Honour will see over the column, to the top column of the right‑hand side:

Thus, the ethnic Chinese are seen as different from other ethnic groups in Indonesia, and somehow less acceptable.

The word “pribumi” is designed in the documents generally, your Honour, to distinguish those indigenous Indonesians from ethnic Chinese and other ethnic groups, but even in those other ethnic groups it is pretty clear, this document says, that the ethnic Chinese are in a special category of their own. 

Also in relation to the third paragraph in the second column, the discrimination that occurred in Indonesia in that:

in practice, ethnic Chinese are asked to prove their citizenship, which can mean paying a bribe and avoiding further questions.

So our submissions go to those passages which, from an ethnic Chinese refugee applicant from Indonesia, would be, we say, significant.  Turning the page to page 73 of the bundle, paragraph 4 of the first column:

The attempt to rehabilitate ethnic Chinese capitalism, however, has not been entirely successful.

And it talks about the status of Chinese businessmen.  Over the page in column 2, second paragraph, down the bottom of the second paragraph, the sentence:

However, perhaps as many as 10 per cent of ethnic Chinese in Indonesia are farmers, while others are labourers or live near the margin of existence in small towns or crowded into urban near‑ghettos.  More of them are agriculturalists than tycoons.

The next paragraph:

not all wealthy businessmen are ethnic Chinese.  Many government and military officials and members of President Suharto’s family have extensive business interests.

We say that is something that would be favourable to the plaintiff.  Down the bottom of that same column in the right‑hand side:

Chinese‑language publications.....even imported ones –

imported Chinese publications –

are officially banned, as is Chinese‑language advertising; shop signs in Chinese characters are forbidden, and even spoken Chinese is frowned upon.  This is not only a matter of policy.  Many young ethnic Indonesians are keenly resentful of these relics of Chinese language and culture, as conversations and letters to the press testify.

Your Honour will see, in the next paragraph, that 90 per cent of the country:

are Muslim, making it the world’s largest Islamic population.  Most of the ethnic Chinese, however, practise a mixture of Buddhism…..though a significant minority are Christians.

At the bottom of that column on page 17 or 74 of the bundle, a few lines above the last paragraph, in universities the:

ethnic Chinese are not freely admitted to public universities –

and in the last paragraph:

Furthermore, the gap between official policy and grass‑roots reactions remains.  Factors behind outbreaks of anti‑Chinese violence have included political and economic crises, perceived grievances and the complicity of local military or police authorities who hesitated to intervene in developing troubles or else allowed a vacuum of power to arise.  The worst anti‑Chinese incidents, for example, took place when there was a sudden change of rulers:  when the Japanese replaced the Dutch in 1942, during the revolution of 1945‑9 –

and so on, right through to the end of that paragraph.  We say that is an assessment there that is favourable to Chinese applicants.  There is also some comments on page 91 which we say are favourable.  That is page 34 of the document, paragraph 6, for example ‑ and I am only taking your Honour to some of these.  There are many other passages that I am not taking your Honour to.  The passage starting with:

The perceived status of the ethnic Chinese in many of the countries of South‑East Asia is often that of wealthy middlemen, with all the jealousies and potential violence that that assumption entails.  When the pressures become too great, the wealthiest do sometimes quit the country (taking their valuable skills and business acumen with them).  Yet the majority –

and this is speaking of South‑East Asia, your Honour, not just Indonesia –

are poor fisher‑farmers who cannot afford to leave and have to deal as best they can with the prejudices bestowed on their whole community by the majority people.

So we say that that is relevant material ‑ ‑ ‑

HER HONOUR:   Page 91, last paragraph?

MR ROBINSON:   The last paragraphs.

HER HONOUR:   Referring to Burma and Indonesia.

MR ROBINSON:   In the first column, the sixth paragraph, and the last paragraph in the second column.  Your Honour will see in my schedule, I am now on page 4 and I am moving to document No 3.  I am halfway down page 4.  In the first page of document No 3, that is page 98, the document headed “Days of Rage”, we say that that shows the nexus between the resentment held by the indigenous Indonesians, the pribumi, towards the Chinese people.  There is talk there of rioting in Medan on April 14, and that is 1994, your Honour.  The heading of that article sets the tone of the article, that an industrial strike held in Medan turned into, or “explodes into”, as the heading says, “into anti‑Chinese violence in Sumatra”.

A pattern through this document, I should say to your Honour, is that almost any event in Indonesia can trigger anti‑Chinese violence and what precipitates the violence varies throughout these documents.  In this particular instance, a strike by workers turned into a violent rage against the Chinese, and that is a theme that is common throughout the documents.  The looting and destruction of Chinese‑owned property on a large scale, is set out there in column 2 on that page.  In the second page, column 1, there is a perception of an alignment with Chinese armed forces.  In the second column, down the very bottom, the last paragraph starting with:

Another question hangs over Medan’s deserted streets:  can Indonesians curb their racial prejudices without relying on the military to do it for them?  Despite official commitment to the state ideology, Pancasila, mutual suspicion among religious and ethnic groups clouds many aspects of national politics, from cabinet appointments to banking scandals to investment decisions.  For Indonesia, the economic and human costs of those unresolved tensions threaten the rosy future many analysts have painted in recent years for the country.

Now, we say that is favourable material.  If I could take your Honour to the next document, page 100, that is Part B, document No 4.  This contains a fairly large amount of favourable material.  It is a report by the United States Department of State Country Reports for human rights.  It relates to 1996 and it was released in January 1997.  It is a common source document used by the departmental decision makers, the Minister’s delegates as well as the Tribunal, and almost all of it, in general terms, your Honour, is highly favourable to ethnic Chinese applicants.

I will take your Honour to some of the main passages.  In the first paragraph on page 100, there is reference to a “strongly authoritarian” political system and the “state ideology” that I have mentioned, and it says that:

The judiciary is subordinated to the executive and the military.

These matters are dealt with further on in the document and explained in detail.  In the second paragraph, last sentence:

There continued to be numerous, credible reports of human rights abuses by the military and the police.

Two paragraphs on, the paragraph starting with “The Government continued”, that whole passage is, we say, favourable, in that it describes in detail some of the categories of serious human rights abuses committed by the Government itself.  On the second page, in that paragraph, in summary – I set out a summary of it at the bottom of page 4 of my submission – there is killing “of unarmed civilians”, legal protection against torturers, said to be inadequate.  The use of torture and general mistreatment of detainees, arbitrary arrests, detentions and the use of violence and deadly force.

In the last paragraph on page 100, paragraph 5, the Government imposes “severe limitations on freedom of assembly and association”, and there is the Government removal of political opposition leaders through violent means and the severe rioting which occurs, as set out there.  This is all in relation to one year.  On page 2, and that is page 101 of the exhibit, there is a general reference to the July rioting, in the middle of the page, and Government “control over and intimidation of the press”, in paragraph 4, and the use of anti‑subversion laws with behaviour adverse to certain groups there.  If I could take your Honour to page 113, second paragraph:

High‑level officials continued to make public statements and emphasize by example the importance of respect for religious diversity in the country.  Lower‑level officials, however, were frequently alleged to be reluctant to facilitate and protect the rights of religious minorities.

That lack of State protection for minorities such as Chinese Christians and Chinese Buddhists, we say, is significant.  Page 115, the third last paragraph from the bottom:

The Government considers outside investigations or foreign‑based criticism of alleged human rights violations to be interference in its internal affairs.  It emphasizes its belief –

and so on.  But that resistance to external interest is significant.  Page 121, under the heading “Religious Minorities” there, that paragraph and the first line of the next paragraph show Christian churches that have been targeted and burnt in October that year, 1996, and Chinese community property is targeted and a Catholic church is burnt in east Jakarta.  The burning of Christian churches, your Honour, bearing in mind that a significant percentage of Chinese people in Indonesia are Christians, is also, in the main, significant, not just in terms of persecution based on religion, but also in terms of the ethnicity element because in Indonesia the two are intertwined.

Over the page, on page 122, paragraphs 1 and 2 deal with the suppression of Chinese publications and suppression of education opportunities, and the banning of the celebration of Chinese New Year. Page 133 is Part B document No 5 for Lie.  It was also referred to in Herijanto and Muin.  Page 131 is the start of it, your Honour.  It is a cable from DFAT, which I asked your Honour to accept as the Department of Foreign Affairs and Trade, which, as your Honour is aware, advises the Department of Immigration officers from time to time about the situation in various countries, and the title of this is “Indonesia:  Domestic Political Situation:  Inter‑Group Relations”.

There is talk of “student brawling” and “acts of destruction of places of Christian worship” in the first paragraph.  Two pages on, in relation to page 133, that is the last page of that document, the last paragraph is relevant, that:

there remains the possibility that underlying religious, racial and social tensions will continue to be manipulated in the lead up to the general assembly of the –

Parliament –

in March as the support groups of various factions angle for political advantage.

That is a similar pattern that emerges from the documents in these proceedings, that prior to, or at about the time, of any political change in Indonesia, rioting occurs, violence occurs and the ethnic Chinese, for want of any incident which precipitates it, bore the brunt of that.  The next document is Part B No 6, that is page 134.  It is also 6 in Herijanto and 18 in Muin.  That dark heading at the top, your Honour, is a CISNET database printout.

Your Honour will see, at the first line, document “CX5957”.  That indicates that this document, and that banner at the top, indicates it is a document that was printed out of the CISNET database that your Honour has heard so much about in these proceedings.  This is an article from Agence France Presse, a news publication, dated 16 April 1994, relating to Medan, Indonesia.  There, the first paragraph talks about a labour protest which “turned into ethnic violence against the Chinese minority”.  Down the bottom of that page, the detail of the violence against the Chinese is set out.  The last sentence on that page:

The violence appeared aimed at ethnic Chinese, who are often the target of jealousy –

Page 135, paragraph 10 – that is really the passage starting with ‑ ‑ ‑

HER HONOUR:   Sorry, page 145?

MR ROBINSON:   135.

HER HONOUR:   135, yes.

MR ROBINSON:   That is the paragraph, your Honour, starting with “But Indonesia’s”, right down to, including that and the next three paragraphs.  Over the page, in page 136, the Muslim majority resentment is made plain.  The level of destruction is set out there and the “residential areas inhabited by many ethnic Chinese” are targeted.  The effect on the ethnic Chinese population is set out there as well, and at least one death occurred in that incident.  Document No 8, which is at page 138 of the bundle – it is cut out at the top but your Honour will see the reference down the bottom of that page.  It is “Human Rights Watch/Asia”.  Now, that group is identified on the last pages of this publication ‑ that is at page 150 – as a:

nongovernmental organization established in 1978 to monitor and promote the observance of internationally recognized human rights in –

a number of countries, and it sets out who is involved in that organisation.  This talks about the April 1994 riots in Medan and in other towns in northern Sumatra which began as worker riots and they say, in the first paragraph:

degenerated into anti‑Chinese violence, resulting in the death of an ethnic Chinese and injuries to two others.

And:

media attention has focused on the ethnic element –

Pages 7 and 8 of that document, that is pages 144 and 145, down the bottom of page 144 under the heading “The Anti‑Chinese Element”, and it says the violence there was partly incited by “flyers (selebaran), which first appeared” – turning the page to 145 – I do not know who produced what were “hastily prepared” flyers, which incited the population there to riot against Chinese.  These flyers appeared in the context of that workers demonstration which invited the people to “Crush the Chinese”.

So we rely on, basically, that whole page.  In the middle of that page at 145, there is a convenient summary of the history of persecution of ethnic Chinese in Indonesia going back to 1965, of violence again in 1975, and again in 1981, and again in 1984.  That is a convenient brief summary of some of the exposure of ethnic Chinese in Indonesia throughout the years and is highly significant, we say, in respect of the pattern of violence against this minority.  On page 147 of this document there is discussion throughout that page of what might be the possible catalysts for the anti‑Chinese riots, and your Honour will see that it could have been any number of things.

My submission at the end of this will be as on the documents as a whole, your Honour:  it does not really matter what triggered the violence because it does not take very much in Indonesia for violence to flare against ethnic Chinese, and that arises from the face of the documents.  The next document which shows favourable material is document B9 at page 153.  That is also referred to in Herijanto No 9 and in Muin No 8.  It is a CISNET article from the Sydney Morning Herald, “INDONESIA:  RICH CHINESE AND RIOTS IN INDONESIA”.

HER HONOUR:   Page 154, the second paragraph ‑ ‑ ‑

MR ROBINSON:   Yes, your Honour.  Again, the history from the 1960s is set out two paragraphs on, and the reason for it is offered in the next paragraph, much the same thing.  In the third page, third paragraph, there is anti‑Japanese and anti‑Government riots which degenerated into anti‑Chinese rioting.  The last paragraph there, on page 155:

should Indonesia slip into a period of instability during the transition from Soeharto to a new and untried leader.

There has been, as your Honour knows, a significant number of riots since May 1994 in Indonesia.  This is just one of them.

The next document I would take your Honour to is No 14.  That is page 191 of the exhibit.  It is a CISNET document, a newspaper article from Reuters in December 1992.  We say it is generally favourable to Chinese Christian refugee applicants.  Page 192, the last three paragraphs, bearing in mind that other documents show that a significant number of Christians are ethnic Chinese as well, that is something that impacts more on Herijanto and Muin, who are ethnic Chinese Christians, than Lie, who is ethnic Chinese Buddhist.  It is only relevant there in Lie in the context of the ethnic Chinese passage, but in terms of the attacks against the Christians, that is also an attack, we say, against the ethnic Chinese.

The next document is 15, page 193.  That is also in Herijanto and Muin.  We say it is mostly favourable generally to ethnic Chinese applicants.  The “old forces of stability are undermined” it says in the second paragraph and it talks again about the riots in Medan that went for 10 days in the nation’s third‑largest city:

They underline the sense of unpredictability that now exists in Indonesia as different groups step up competition for power in the post‑Suharto world, clearly on the horizon –

The next document is 16, page 196.  I must say, while it is not adverse generally speaking, it is only slightly favourable.  That is from The Economist of 17 April 1993.  Its significance on the first and second page there is recognition by a future leader of Indonesia, Mr Wahid, at the bottom of the first page, 196, where in the second‑last sentence on that page:

He believes that there is every chance that Indonesia’s traditionally tolerant strain of Islam could take a narrower, harsher line.

Over the page, Mr Wahid speaking of a letter he wrote to the then President:

warning him that unless steps were taken Indonesia threatened to become “another Algeria” within ten years.

These comments were made in 1993.  On page 198 under the heading “The Chinese puzzle”, there is discussion there about the fragile nature of Indonesian society and the “traditional antagonism towards the Chinese”.  That is in the second‑last paragraph.  Over the page at 199, third paragraph:

Chinese-Indonesians suffered disproportionately in the…..1960s –

That paragraph we rely on and the last paragraph:

a severe test of the strains within Indonesian society.  It may even raise old questions about the unity of the Indonesian state itself.

That is going over the page to 200.

In the next document we rely on, document No 18, this is from December 1995, TAPOL Bulletin, printed from CISNET.  Generally speaking, your Honour, the whole document is very favourable to ethnic Chinese.  In short it speaks about a riot which was precipitated by two chocolate bars and a thirteen‑year‑old girl who went shopping with some school friends.  She suffered punishment which is set out in the second paragraph from a shop owner and she was forced to clean the toilets and take off her scarf.  As the day wore on, anti‑Chinese sentiment became the main issue for large crowds of people that developed.  The next day riots occurred and ethnic Chinese people were the target.  Those two pages we rely on in total as being favourable to Chinese applicants, showing one incident can precipitate violence on a large scale.  This is a town in West Java, Purwakarta.  It also deals with the inability of the State to provide protection.  Your Honour will see on page 202 in the last paragraph, incidents like this riot can easily erupt anywhere in Indonesia.  The last sentence:

Such a situation can easily ignite anti‑Chinese sentiments because many of the shops and businesses in towns like –

those two towns –

are owned by ethnic Chinese.

The next document is 19.  This is a four-page document which appears to be a printout from a computer but not CISNET.  It is a Sydney Morning Herald article from 1 February 1997.

HER HONOUR:   Exhibit page?

MR ROBINSON:   Pages 203 to 206, your Honour.  We categorise this article as mostly favourable.  It is the description of the character of another anti‑Chinese riot, destruction of homes, the frequency of these riots, the volatility of what is termed the “lower classes” and the connection to the power struggle.  The person interviewed there says “eventually, the nation will burn” in the last line.  We rely on the whole of that, your Honour.  That is also 19 in Herijanto.  It is not referred to in Muin.

The next document we rely on is Lie Part B No 20.  It is also Herijanto No 20 and it is not referred to in Muin.  That is mostly adverse, your Honour, but there is material in there that is partly favourable.  It shows yet another location for anti‑Chinese riots – this is at 207 – more riots in Jakarta.  It shows a connection between economic grievances and attacks on Chinese, so the passages that appear there are the third paragraph, last sentence, and the next paragraph which shows yet another incident that precipitated trouble:

when a Chinese woman objected to the pre‑dawn clamour made by children of local Muslim families…..But it seems there are many kinds of sparks that can start a conflagration in Indonesia at present.

Then there is talk of other riots.

No 22 is the document at page 211.  “Under the Volcano” is the heading of the article and it is an article that appeared in the Far Eastern Economic Review in March 1997. Generally speaking, I will not take your Honour to the detail of it except the paragraph on the first page:

Taken to the extreme, these feelings can erupt into violence.  In recent months, four major riots have occurred across Java thrusting obscure towns –

such as those listed there –

into world headlines.  Some of the violence has been aimed at homes, businesses, and places of worship belonging to ethnic Chinese – a historical target of economic resentment in Indonesia.

MR BASTEN:   Yes.  That would obviously assist, and I might refine my thoughts about the inferences in the same period.  If your Honour pleases.

HER HONOUR:   Very well.  I will adjourn until 10 o’clock tomorrow.

AT 3.26 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 18 AUGUST 2000