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Launch of An age of uncertainty (2012)

Commission Commission – General

Launch of An age of uncertainty

Catherine Branson QC,
President, Australian Human Rights Commission

Friday, 27 July 2012


I would like to acknowledge the Gadigal people of the Eora nation, the Traditional Owners of the land upon which we gather today. I pay my respects to your elders past, present and future.

I am pleased this morning to launch An age of uncertainty – the report of the Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children. I express my thanks to the Attorney-General for agreeing to the tabling of this report in Parliament out of session.

This report is concerned with the human rights of children. It makes disturbing reading.

The fact is that a significant number of Indonesian children have been incarcerated in adult correctional facilities, including maximum security facilities, in Australia, in some cases for very long periods of time.

Between late 2008 and late 2011, 180 young Indonesians who said that they were children arrived in Australia having worked as crew on boats bringing asylum seekers to Australia. These individuals were recruited from remote fishing communities on the Indonesian coast, where they often live in conditions of poverty. The majority of these individuals had left school at an early age in order to find paid work.

Though some had experience working as fishermen, many others had little to no experience at sea. From material before the Inquiry, it appears that many of these individuals were not aware of the purpose of their trip or even that they were coming to Australia. Many crew claim that they were ‘tricked’ into coming to Australia.

In some cases, it was immediately apparent to Australian authorities that the young people were children and they were returned to Indonesia.

However, in many cases these young Indonesians were not given the benefit of the doubt and treated as children unless and until it was established that they were adults.

In most cases before mid-2011, Australian authorities relied on wrist x-ray analysis to assess age. If the wrist x-ray analysis suggested that a young Indonesian was a child, he was ordinarily returned to Indonesia without being charged. But if the wrist x-ray analysis suggested that he was skeletally mature he was immediately treated as an adult, even if other age assessment processes suggested that he might be a child.

It is now beyond question that wrist x-ray analysis has been discredited as a means of assessing whether an individual is an adult. A mature wrist is not informative of whether a person is over the age of 18 years and in fact is quite consistent with a person being under the age of 18 years.

The consequence of reliance on wrist x-ray analysis to assess age, combined with a reluctance to rely on the outcomes of focused age assessment interviews, inadequate efforts to seek documentary evidence of age from Indonesia and, until mid-2011, opposition to the admission of documentary evidence from Indonesia in age determination proceedings, was that errors were made in the age assessment of young Indonesians suspected of people smuggling.

We now know that a significant number of young Indonesians assessed to be adults on the basis of wrist x-ray analysis were in fact children, or were very likely to have been children, at the time of their apprehension.

As I have already said, Indonesian children have been incarcerated in adult correctional facilities, including maximum security facilities, in Australia, in some cases for very long periods of time.

It is important to remember that adults convicted of people smuggling offences face a mandatory minimum sentence of five years (with a non-parole period of three years).

Fifteen young Indonesians who had been convicted as adults of people smuggling offences were ultimately released on licence in May and June of this year after an Australian Government review established that there was doubt about whether they were adults at the time of their apprehension.

These young Indonesians spent on average 948 days in detention, of which on average 864 days, or well over two years, were spent in adult correctional facilities.

Many more young Indonesians also spent long periods in adult correctional facilities before their prosecutions were eventually discontinued.

For example 48 individuals were charged as adults after their wrists were x-rayed, but ultimately had the prosecutions against them discontinued.

They spent an average of 431 days in detention, of which on average 199 days, or well over six months, were spent in adult correctional facilities. Many of these individuals are likely to have been children at the time of their apprehension.

However, the Commission believes that there may be a significantly higher number of individuals who were, at some time, detained in adult correctional facilities while there was at least a strong possibility that they were children. This is because the there are cases where individuals, who either maintained that they were less than 18 years of age, or appeared not to have known their age, accepted that they were over 18 years of age once presented with what they understood to be conclusive evidence in the form of a wrist x-ray analysis.

The events outlined in this report reveal that, between 2008 and 2011, each of the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions and the Attorney-General’s Department engaged in acts and practices that led to contraventions of fundamental rights; not just rights recognised under international human rights law but in some cases rights also recognised at common law, such as the right to a fair trial.

It seems likely that some of these failings are best understood in the context of heavy workloads, difficulties of investigation and limited resources.

Others, however, seem best explained by insufficient resilience in the face of political and public pressure to ‘take people smuggling seriously’; a pressure which seems to have contributed to a high level of scepticism about statements made by young crew on the boats carrying asylum seekers to Australia that they were under the age of 18 years.

As a nation that is understandably anxious that the rights of our own children should be respected when they come into contact with the authorities of other countries, it is troubling that between late 2008 and late 2011 Australian authorities apparently gave little weight to the rights of this cohort of young Indonesians.

I would like to acknowledge that the Australian Government’s approach to the age assessment of young Indonesians suspected of people smuggling has now changed.

Since July 2011, only one individual has had his wrist x-rayed.

In late 2011, the Office of the Commonwealth Director of Public Prosecutions stopped relying on wrist x-ray analysis as evidence of age where there was no other probative evidence of age.

In December 2011, a new process commenced whereby the Department of Immigration and Citizenship conducts focused age assessment interviews with all individuals whose age is in doubt and only refers to the Australian Federal Police those individuals who it concludes are likely to be adults.

These changes have led to a significantly improved approach to the assessment of whether young Indonesians suspected of people smuggling are older than 18 years of age – one which is less likely to lead to errors and therefore less likely to result in breaches of the rights of children.

I welcome these changes, but note that many of them came too late for the many young Indonesians who were not given the benefit of the doubt, whose ages were incorrectly assessed, and who consequently experienced significant breaches of their human rights.

For these individuals, what has been lost is irretrievable. I feel this is best expressed in the words of one of these individuals, when he told Commission staff: “I feel like I was still a child when I was in Indonesia, but all my experiences in Australia have forced me to grow up. I feel that my childhood ended when I came here”.

The recommendations of this report are intended to assist in creating a lasting environment in which the rights of young Indonesians suspected of people smuggling are respected and protected in every interaction they have with Australian authorities.

Key among these is the recommendation that the Crimes Act be amended so that wrist x-ray analysis can no longer be used as evidence that a person is over the age of 18 years.

I hope that this Inquiry will lead to mature reflection on the strengths and weaknesses of our criminal justice system more generally – so that in the future it is sufficiently robust to ensure that the human rights of everyone suspected of a criminal offence, including young foreign nationals, are respected and protected.