1 Introduction and background

An age of uncertainty

Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children

Chapter 1: Introduction and Background

1 Introduction

Between 1 September 2008 and 22 November 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 young people were often fishermen from impoverished communities in the south and east of Indonesia. Many of them have spent long periods of time in immigration detention without being charged, or prior to being charged, with an offence. Some have spent long periods of time in adult correctional facilities in Australia after being charged, and in some cases after being convicted, as an adult of a people smuggling offence.

This Inquiry is concerned with whether the human rights of these individuals were adequately protected by Australian authorities. It specifically considers whether these young people were afforded the benefit of the doubt; whether their best interests were at all times a primary consideration; whether they were detained only as a last resort and for the shortest appropriate period of time; whether while in detention they were separated from adults; and whether they were provided with the special protection and assistance required by children separated from their families.

The Commission first became aware of the issues considered in this Inquiry in late 2010. In September 2010, the Australian Human Rights Commission visited immigration detention facilities in Darwin. At the time of the Commission’s visit there were 151 adult crew detained at the Northern Immigration Detention Centre, and 15 boys detained at Berrimah House, a facility designed to accommodate unaccompanied minors. These boys ranged in age from 11 to 17 years of age. The Commission’s visit occurred just days after a number of Indonesian crew rioted at the centre, allegedly protesting the length of time that they had been held in detention without charge. The Commission was concerned that the unaccompanied minor Indonesian crew members had been held in detention without charge for periods of between three to eight months.^[1]

The Commission soon became aware of concerns that Indonesian boys who had arrived in Australia as crew on boats carrying asylum seekers had been charged and prosecuted as adults and were being held in adult correctional facilities. As far as the Commission is aware, these concerns first became public in an article published in The Australian newspaper in November 2010.^[2] The article claimed that there were at least four Indonesian nationals detained in Western Australian jails who claimed to be underage, and that in two of these cases the Indonesian Consulate had provided extracts of official birth certificates supporting their claims to be under 18 years of age. The article also contained criticisms of wrist x-ray analysis – the process by which age has been most commonly assessed in cases where an individual’s age is in dispute.

Alert to international concern about the extent to which wrist x-rays are able to provide an accurate estimation of a person’s chronological age, Commission President, the Hon Catherine Branson QC, commenced an exchange of correspondence with the then Attorney-General, the Hon Robert McClelland MP. Her first letter was sent on 17 February 2011. It expressed concern about the reliance being placed on wrist x-rays for age assessment purposes; about aspects of the process of obtaining consent from each of the individuals whose wrists were being x-rayed; and about whether all information regarding assessments of the ages of individuals who said that they were minors was being disclosed to the defence in the course of prosecutions.^[3]

The then Attorney-General replied on 31 March 2011 informing the Commission that he had asked his Department to lead a working group comprising the Department of Immigration and Citizenship (DIAC), the Australian Federal Police (AFP) and the Office of the Commonwealth Director of Public Prosecutions (CDPP) to:

examine what steps can be taken to ensure that age determination procedures provide the best evidence for a court to determine the age of people smuggling crew who claim to be minors.^[4]

The then Attorney-General wrote to the Commission President again on 30 June 2011 to report that an enhanced age assessment process, including offering voluntary dental x-rays, targeted age assessment interviews by the AFP and increased efforts to obtain relevant documentary evidence of age from Indonesia, had been developed by a working group of Commonwealth agencies.^[5]

Although the Commission President cautiously welcomed these initiatives, she expressed concern about the ongoing reliance on radiography for the purposes of determining age. She also continued to express concern that there may have been cases where errors in age assessment had occurred, resulting in juveniles being detained in adult correctional facilities for lengthy periods of time. In July 2011 and again in November 2011, the Commission President wrote to the then Attorney-General to express this concern and to urge that there be an independent review of whether a proper and reliable assessment of age had been conducted in all cases where a person had said that he was a minor but had been convicted as an adult; as well as in all cases before the courts where age was in dispute.^[6] The then Attorney-General declined to conduct such a review, saying that he was satisfied that courts considered all available evidence and were fully aware of the limitations of wrist x-rays, and because crew had independent legal representation.^[7]

Meanwhile, during 2011, public discussion of the age assessment of Indonesian crew grew. Numerous media articles canvassed the possibility that individuals who were in fact juveniles had been convicted as adults and were being detained in adult correctional facilities.^[8] In mid-2011, defence lawyers for three crew members who said that they were minors travelled from Brisbane to Indonesia to seek affidavit and documentary evidence of their clients’ ages. Following the presentation of this material to the Office of the CDPP, the prosecution was reportedly discontinued in each of these three cases.^[9] Then in late 2011, individuals who had claimed to be children were found to be under 18 years of age in several age determination hearings conducted in Western Australia. Importantly, in two of these cases, the court criticised the evidence of the Commonwealth’s preferred witness.^[10]

The Commission continued to hold concerns that there may have been some cases in which errors had been made in age assessment and that individuals who had been children at the time of their apprehension remained incarcerated in adult correctional facilities. In the absence of an agreement to conduct a comprehensive review of these cases, on 21 November 2011 the Commission President announced that she would conduct an Inquiry into the treatment of individuals suspected of people smuggling offences who said that they were children.

1.1 The Commission’s power to hold an Inquiry

The Commission was established by the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). It is recognised by the United Nations as Australia’s independent national human rights institution.

The primary function of the Commission under the AHRC Act that is relied upon for the conduct of this Inquiry is that of:

inquiring into acts or practices that may be inconsistent with or contrary to any human right (section 11(1)(f)).

Other Commission functions that are relevant to, and relied upon, for the purpose of this Inquiry, include:

examining enactments for the purpose of ascertaining whether the enactments are inconsistent with or contrary to any human right and reporting to the Minister the results of any such examination (section 11(1)(e))
promoting an understanding, acceptance and public discussion of human rights in Australia (section 11(1)(g))
advising on laws that should be made by the Parliament or action that should be taken by the Commonwealth on matters relating to human rights (section 11(1)(j)).

The ‘human rights’ specified in the above functions are outlined in a number of human rights treaties and instruments identified in the AHRC Act. In conducting this Inquiry, the Commission, by its President, has investigated, in particular, whether the treatment of individuals suspected of people smuggling offences who said that they were children was consistent with Australia’s obligations under the Convention on the Rights of the Child (CRC), as well as those set out in the International Covenant on Civil and Political Rights (ICCPR). See further section 6 below which discusses the international human rights obligations that are relevant to this Inquiry.

1.2 The Inquiry terms of reference

The terms of reference for this Inquiry were published on 21 November 2011. The Terms of Reference are as follows:

The President will inquire into Australia’s treatment of individuals suspected of people smuggling or related offences who claim to have been under the age of 18 years at the date of the offences of which they are suspected (the individuals of concern), including by inquiring into acts and practices of the Commonwealth with respect to:

assessments of the ages of the individuals of concern made by or on behalf of the Commonwealth for immigration purposes, including by any ‘officer’ as defined by section 5 of the Migration Act 1958 (Cth);
assessments of the ages of the individuals of concern during the course of the investigations of the people smuggling or related offences of which they were suspected;
assessments of the ages of the individuals of concern for the purpose of decisions concerning the prosecution of the people smuggling or related offences of which they were suspected;
decisions concerning whether, and the processes and procedures used, to:
1. facilitate contact between parents/guardians and the individuals of concern;
2. contact and obtain information relevant to age assessment from parents/guardians of the individuals of concern;
the preparation for and the conduct of legal proceedings in which evidence concerning the ages of the individuals of concern was, or was intended to be, adduced;
the detention, including the determinations of the places of detention and the conditions of detention, of the individuals of concern;
the provision of guardians or other responsible adults to ensure that the interests of the individuals of concern, including with respect to age assessment, were protected;
the provision to the individuals of concern of legal advice, assistance and representation, including with respect to age assessment; and
any other matters incidental to the above terms of reference.

NOTE: References in these terms of reference to, or to the doing of, acts include references to refusals or failures to do such acts (see section 3(3) of the Australian Human Rights Commission Act 1986 (Cth)).

1.3 The Inquiry time period

For the purpose of this Inquiry, the Commission sought information about individuals suspected of people smuggling or a related offence who arrived in Australia by boat between 1 September 2008 and 22 November 2011 who claim or claimed to be under the age of 18 years at the date of the offence of which he was or is suspected. The majority of the material provided to the Commission relates to individuals who were apprehended between 2009 and 2011. Specifically, the statistics in this report have been calculated by reference to 180 individuals suspected of people smuggling who arrived in Australia between 29 September 2008 and 22 November 2011.

This report also contains discussion of some events up until mid-2012.

1.4 Terminology

Where this report makes reference to specific individuals, it ordinarily identifies them by the alphanumeric identifier given to them by DIAC when they first arrived in Australia. The only circumstance where an individual is named is where he has given the Commission express permission to use his name or where his name has appeared in the media. The Commission has taken this approach because many of the individuals of concern are likely to have been under 18 years of age at the time of their apprehension.

In addition, this report only uses male pronouns when referring to young Indonesians. This is because all of the individuals of concern to this Inquiry are male. The same issues and concerns that arise with respect to young Indonesian males would arise in the case of young female Indonesians.^[11]

2 Methodology

The Commission has sought to hear from as many individuals and organisations as possible who have been involved in some way with individuals suspected of people smuggling who said that they were children. This includes the individuals themselves, their defence lawyers, the Commonwealth agencies who have responsibility for their treatment while in Australia, non-government organisations and other individuals.

Individuals who are suspected of people smuggling come into contact with a number of Commonwealth agencies. During this Inquiry, the Commission has considered particularly the conduct of those agencies that have had some input into age assessment processes and also those agencies and departments responsible for law enforcement, including:

the Department of Immigration and Citizenship (DIAC), which is responsible for the individuals while they are in immigration detention, and which may assess age for the purpose of determining an appropriate place of detention
the Australian Federal Police (AFP), who are responsible for investigating potential charges of people smuggling and for deciding whether charges are laid
the Commonwealth Director of Public Prosecutions, who is responsible for prosecuting alleged offences of people smuggling, and his office (Office of the CDPP)
the Attorney-General’s Department (AGD), which has broad responsibility for law enforcement policy.

The Commission is grateful to all of these agencies for their efforts to assist the Commission in the conduct of this Inquiry.

The Commission gathered information through a variety of mechanisms, including:

notices requiring the production of documents and information
public submissions
public hearings
interviews with individuals who, at the time that they were apprehended or during the process of investigation and prosecution, said that they were children.

Each of these sources of information is discussed in further detail below.

2.1 Evidence produced pursuant to Notices

On 21 November 2011, the Commission issued ‘Notices to Produce’ to the four Commonwealth agencies involved in the treatment of the individuals of concern to this Inquiry: DIAC, the AFP, the CDPP and AGD. Each agency was required to produce information and documents relevant to the Inquiry.^[12] The notices required the agencies to produce:

Information about individuals of concern, including their claimed date of birth; whether their wrist was x-rayed and, if so, whether the requirements of s 3ZQC(2) of the Crimes Act 1914 (Cth) were met; whether they were charged and, if so, the date of the charge; where they were detained and the length of their detention; the steps taken to notify their family members and the Indonesian Consulate of their circumstances; and whether and, if so, when they were provided with legal advice.
Documents in their possession about the assessments of the ages of the individuals of concern and documents concerning decisions made regarding their ages and, as relevant, their investigation, prosecution, conviction and sentencing.
Documents about whether the agency was aware of the criticisms of the wrist x-ray procedure as a means of assessing age, and what steps the agency took in response to the letter dated 17 February 2011 from the President of the Commission to the then Attorney-General regarding age assessment processes.
All policy, guideline and instruction documents about assessing a person’s age, when and how to conduct a wrist x-ray, and notification of family members and the Indonesian Consulate.

Each agency was required to provide this material to the Commission by 21 December 2011. The Commission permitted an extension of time to DIAC which allowed information to be provided progressively from shortly after the due date until 21 February 2012.

The required information and a significant number of documents were duly provided to the Commission. When agencies became aware of relevant documents that they had not provided the Commission, they notified the Commission and offered to make them available. The Commission acknowledges and expresses its gratitude for the considerable amount of work that was involved in the identification and collation of this material.

2.2 Public submissions

On 21 November 2011, the Commission called for public submissions in relation to the Inquiry. The deadline for submissions was 3 February 2012. The Commission accepted submissions after that date at its discretion.

The Commission invited submissions through the internet and email lists. Submissions were numbered as they were received.

The Commission received 39 submissions in respect of the Inquiry, including four that were confidential. Submissions came from a range of individuals and organisations representing medical bodies, members of the legal profession and legal aid commissions, children’s commissioners and guardians, members of Parliament, academics, advocacy and non-government organisations. The Commission also received a joint submission from AGD, the CDPP and the AFP. A separate submission was received from DIAC. In order to ensure that standards for confidentiality and privacy were maintained, submissions were amended where necessary to remove the names and identifying details of any individuals who were named or referred to.

The Commission is grateful to all those who devoted their time, energy and expertise to assisting the Commission on this Inquiry. The submissions received by the Commission have been a useful resource, canvassing a number of key issues in detail. To the extent that the content of the submissions can be summarised, they discuss the ethics and reliability of x-ray technology, including wrist, dental and clavicle x-rays to assess chronological age; alternative processes and methods of age assessment including the obtaining of documentary evidence of age; international practice and international legal obligations related to minors; and observations about the experiences of Indonesian minor crew within the criminal justice system.

2.3 Public hearings

Two public hearings were held as part of the Inquiry; the first for medical experts and the second for Commonwealth agencies. The hearings were conducted by the Commission President who was supported by Commission staff. The oral evidence at the hearing for Commonwealth agencies was given on oath or affirmation.

Transcripts of both public hearings were placed on the Inquiry website. All witnesses were provided with a copy of the draft transcript of their evidence to enable corrections to be made prior to its being made available online.

(a) Public hearing for key medical experts – 9 March 2012

The public hearing for key medical experts was held in Sydney on 9 March 2012. The primary purpose of the hearing was to obtain evidence about the science and ethics of using wrist x-rays, dental x-rays and alternative biological markers to assess chronological age.

Three medical experts were physically present at the hearing and two medical experts participated in the hearing via video link. The participants were experts in the fields of forensic odontology, paediatric radiology, paediatric endocrinology, general radiology and medical statistics.

(b) Public hearing for Commonwealth agencies – 19–20 April 2012

The public hearing for Commonwealth agencies was held in Canberra on 19 and 20 April 2012. The primary purpose of the hearing was to provide an opportunity to:

explore the policy framework and developments in the policy framework of each agency with respect to processes for assessing the ages of individuals suspected of people smuggling
examine the actions of the Commonwealth in individual cases
clarify issues raised in the joint submission of AGD, the CDPP and the AFP

and by these means, obtain a comprehensive picture of the Commonwealth’s treatment of individuals convicted or suspected of people smuggling offences who claimed to be children.

This hearing was attended by the Commonwealth Director of Public Prosecutions and senior members of his Office; the Deputy Commissioner Operations of the AFP and one further member of the AFP; the First Assistant Secretary, Criminal Justice Division of AGD and two other AGD officers; and the First Assistant Secretary, Community Programs and Children Division of DIAC and two other DIAC officers. The Commission is grateful to the representatives of the Commonwealth agencies for their time and cooperation during the two days of hearings.

2.4 Interviews with individuals convicted of people smuggling offences who said that they were under 18 at the time they were apprehended

On 26 and 27 April 2012, two members of the staff of the Australian Human Rights Commission visited Albany Regional Prison and Pardelup Prison Farm for the purposes of this Inquiry. The Commission chose to visit these two facilities because of the concentration of individuals of concern to the Inquiry who were held there. Twelve Indonesians who were detained in these facilities had said that they were children at the time of the offence of which they were charged. The purpose of the visits was to speak with as many as possible of these 12 individuals in order to understand their backgrounds and histories, and to hear first-hand accounts of their experiences since arriving in Australia.

Only individuals who chose to speak with the Commission staff were interviewed. Each interview was conducted in private with the assistance of an Indonesian interpreter. Each individual interviewed was asked a number of questions concerning his family background, journey to Australia and experiences during the investigation and prosecution process; and about the time spent by him in detention, his treatment in detention and correctional facilities, his contact with relatives, and the availability of evidence confirming his claimed age.

The Commission staff undertook four interviews at Albany Regional Prison and three interviews at Pardelup Prison Farm. One individual was unable to participate due to illness, and four individuals expressed a desire not to speak with Commission staff.

During their visit to Albany Regional Prison, the Commission staff observed the facilities and services available to all prisoners, and spoke to prison officials about efforts made to accommodate the large number of Indonesian inmates.

The Commission thanks the Western Australian Department of Corrective Services for its assistance in facilitating the visits. The Commission is particularly grateful to the staff at both prison facilities for their attentiveness and willingness to assist the Commission in the conduct of this Inquiry.

2.5 Confidentiality of material provided to the Commission

The Commission has received a great deal of confidential material from Commonwealth agencies and interested parties during the course of its Inquiry. The Commission recognises the importance of its maintaining the confidentiality of this material. The Commission also notes that there is public interest in ensuring transparency regarding the treatment of the individuals of concern to this Inquiry. Consequently, the Commission has relied heavily on documents provided by each of the Commonwealth agencies, and has referred to, and published extracts from, many non-confidential documents throughout this report.

As noted above, the Commission has sought to avoid publishing the name of any young individual except where he has given us his express permission to do so or where his case has received considerable publicity and his name has been published in the media.

The Commission also offered an opportunity for any person or organisation to make a confidential submission to the Inquiry or to make parts of their submission confidential. The Commission also provided each Commonwealth agency involved with a draft copy of this report and the opportunity to request that particular information remain confidential.

3 People smuggling offences and age assessment

3.1 The crime of people smuggling

The Migration Act 1958 (Cth) makes it an offence for a person to organise or facilitate the arrival or entry into Australia of an individual who has no lawful right to come to Australia.^[13] This is known as the offence of people smuggling.

A person commits an aggravated offence of people smuggling if he or she organises or facilitate the arrival or entry into Australia of a group of at least five persons who have no lawful right to come to Australia.^[14]

The maximum penalty for the offence of people smuggling is ten years imprisonment and/or a $110,000 fine.^[15] The maximum penalty for the aggravated offence of people smuggling is 20 years imprisonment and/or a $220,000 fine.^[16]

The Migration Act provides for mandatory minimum sentences of imprisonment on conviction for some people smuggling offences. For example, a mandatory minimum sentence of five years (with a non-parole period of three years) applies on conviction as a first offender for the aggravated offence of people smuggling (at least five people).^[17]

These mandatory minimum sentences do not apply to minors.^[18] Moreover, if a person has been charged with a people smuggling offence, a court may discharge him without conviction if it is found on the balance of probabilities that he was under 18 years of age at the time of the offence.^[19]

3.2 The significance of the age of a person suspected of a people smuggling offence

As the above paragraphs make clear, a determination that he or she is an adult has significant consequences for an individual who is convicted of people smuggling.

An assessment that an individual is an adult is also important for other reasons. First, current government policy is ordinarily not to proceed with a prosecution if a suspect is found to be less than 18 years of age at the time of his or her alleged offence. The Prosecution Policy of the Commonwealth states that the prosecution of a juvenile should always be regarded as a ‘severe step’.^[20] In light of this policy, juveniles should only be charged with people smuggling in ‘exceptional circumstances’ on the basis of their ‘significant involvement in a people smuggling venture’, their ‘involvement in multiple ventures’ or where there are other ‘exceptional circumstances’.^[21]

Secondly, individuals regarded as adults are generally detained in adult correctional facilities. Unless they are granted bail, they will be held in adult facilities while on remand awaiting trial and while serving any sentence imposed after conviction.

Accordingly, assessment or determination of a person’s age is extremely important in the context of people smuggling. If Australian authorities accept that a person suspected of people smuggling is under the age of 18 years, he is unlikely to face charges. If there are exceptional circumstances and he is charged and convicted, he will not be subject to a mandatory minimum sentence. On the other hand, if Australian authorities do not accept that an individual who allegedly brought asylum seekers to Australia by boat is a minor, he is likely to be charged with people smuggling. If he is convicted of aggravated people smuggling he will be subject to a mandatory minimum sentence of imprisonment and detained in an adult correctional facility.

3.3 The legal framework that governs age assessment in criminal proceedings

Many of the individuals who are suspected of people smuggling arrive in Australia without identity or travel documents. Australian authorities, and indeed, often the individuals themselves, may be uncertain as to whether they were under the age of 18 years at the time of their alleged offence.

In 2001, the Crimes Act was amended to provide for the carrying out by an investigating official of a ‘prescribed procedure’ where it is necessary to determine whether or not a person who is suspected of a Commonwealth offence is, or was, at the time of the alleged commission of the offence under the age of 18 years.^[22] These amendments were made in response to a decision of the Northern Territory Supreme Court in 2000 which found that the Migration Act did not provide statutory authority for the taking of a wrist x-ray for the purposes of age assessment.^[23]

Division 4A of Part IAA of the Crimes Act now authorises and regulates the use of a ‘prescribed procedure’ for determining age.^[24] A ‘prescribed procedure’ is defined by s 3ZQA(1) of the Crimes Act to mean a procedure specified by regulations made for the purpose of subsection (2) of that section to be a prescribed procedure for determining a person’s age. Currently, the only procedure so specified is a ‘radiograph ... of a hand and wrist of the person whose age is to be determined’ (wrist x-ray).^[25]

An age determination procedure must be carried out in a manner consistent with appropriate medical or other relevant professional standards.^[26]

An investigating official may arrange to carry out an age determination procedure either with the consent of the person whose age is to be determined and the consent of a parent or guardian or an independent adult, or by order of a magistrate.^[27]

4 Age assessment processes employed in Australia

In conducting this Inquiry, the Commission has considered the range of age assessment processes that have been employed in Australia.

The primary age assessment process employed in respect of individuals suspected of people smuggling has been wrist x-ray analysis.

This report also considers the other age assessment processes that have been utilised, or offered for use in people smuggling matters where age is in dispute. These include the ‘improved age assessment process’ that was announced by the Australian Government in July 2011 which comprised:

dental x-rays
focused age assessment interviews conducted under caution by AFP officers
steps taken by the AFP as early as possible to seek information from Indonesia, including birth certificates and other relevant information to help determine age.

This report additionally considers the use of focused age assessment interviews by DIAC. A trial of such interviews was conducted in October 2010. Thereafter, interviews of this kind were not undertaken until December 2011. From this time on, a DIAC focused age assessment interview has been conducted with any individual suspected of people smuggling whose age is in doubt. Crew are treated as adults and referred to the AFP for further investigation only where there are clear indications that they are over 18 years of age. Where there is doubt that a person is over 18 years of age, or if DIAC is satisfied that he is a minor, he will be sent home to Indonesia without charge.

5 The people who are the subject of this Inquiry

5.1 Where individuals suspected of people smuggling come from

The Inquiry has received a large amount of information about the individuals suspected or charged with people smuggling who said that they were children at the time of the offence of which they are or were suspected. Much of the information in this section is drawn from the submission made to the Inquiry by Victoria Legal Aid. This information accords with the documents about individuals that have been provided to the Commission by the Commonwealth agencies.

Generally, people who work as crew on boats that bring asylum seekers to Australia are recruited from remote fishing communities on the Indonesian coast. Crew are often from unsophisticated backgrounds, living in conditions of poverty.^[28] Many come from single parent families having suffered the death of one parent. As a result, many of the young crew are the sole income earners for their families, carrying a heavy burden of responsibility for younger siblings and other dependent relatives. Children as young as eight years old have worked as crew on boats bringing asylum seekers to Australia.^[29]

The majority of crew have a low level of education, often not above primary school level, having left school at an early age in order to find paid work. Though some of these young individuals have experience working as fishermen, many others have little to no experience at sea. Many of them previously had intermittent employment as labourers, motorbike drivers, and farm workers. Many had experienced frequent periods of unemployment, taking up work as and when an opportunity arose. For these communities in which fishing is the main source of income, conditions of poverty appear to have been exacerbated by the extension of Australia’s exclusive fishing zone, strict rules which prevent Indonesians from fishing at Ashmore Island, and depleting fish stocks.^[30]

From the documents received and from first-hand accounts obtained during the course of the Inquiry, it is clear that many of these individuals are not aware of the purpose of their trip or even that they are coming to Australia. Many crew claim to have been ‘tricked’ into coming to Australia. Typically, they relate being approached by their current employer or by strangers and given very little, and often false, descriptions of the work they will be expected to perform on the boat. They are promised what amounts to large sums of money in Indonesia – often ranging between 300,000 rupiah (approximately A$32) to 5 million rupiah (approximately A$530).^[31] The arrangement would often be that this would be paid to them on their return to Indonesia.^[32] For these individuals, there is a significant incentive to accept work which promises an income several times higher than they would normally receive, especially in circumstances where there is little paid work available to them and limited opportunities for securing steady employment and a regular income.

The young Indonesians appear to rarely be told that they will be bringing asylum seekers to Australia. Occasionally, crew have been told that the people on board will be picked up by another boat in international waters and they will return to Indonesia before entering Australian waters.

In many cases, the young Indonesians are told that they will be transporting cargo, rice or other goods around the Indonesian islands. Often the asylum seekers are only brought onto the boat via smaller boats a distance from the shore.^[33] In situations where the asylum seekers are already on the boat, the crew have been told that they are foreign tourists or foreign military and they will be responsible for taking the foreign tourists or military around the Indonesian islands. In many cases, ‘the crew are only transferred onto the boat shortly before Australian waters and the organisers then depart on a second boat’.^[34]

Crew are often responsible for performing odd jobs; they may work as a cook or a deckhand, look after the engine or occasionally steer the vessel as directed. In the vast majority of the cases considered by the Commission as part of this Inquiry, the role of the young crew was no more significant than playing supporting roles on the boats and following the directions of older crew members.

It can be several days into the journey before crew become aware – whether by being told by other crew, or by inferences drawn from the ethnicity of the passengers and their circumstances – that the people they are transporting are to be taken to Australia. At this stage, when the boat is already well into the ocean there is no opportunity for crew to leave the boat.^[35] In some circumstances, the crew have only realised they were in Australian waters upon interception by the Australian authorities.

5.2 The number of individuals suspected of people smuggling offences who have said that they are children

The Commission received information from the Commonwealth about 180 individuals suspected of people smuggling offences who, at some point, told the Australian Government that they were under 18 years of age when they were apprehended.^[36]

Of the 180 individuals suspected of people smuggling who arrived in Australia during the relevant time period and said that they were children:

51 did not have their wrists x-rayed and were removed from Australia without charge
33 had their wrists x-rayed and were removed from Australia without charge
29 had their wrists x-rayed and were charged and convicted
2 did not have their wrist x-rayed and were charged and convicted
6 had their wrists x-rayed and were charged but found not guilty
2 had their wrists x-rayed and are currently before the court
2 were not x-rayed and are currently before the court
48 had their wrists x-rayed, were charged with people smuggling offences and ultimately had the prosecution against them discontinued
7 did not have their wrists x-rayed, were charged with people smuggling offences and ultimately had the prosecution against them discontinued.

5.3 An outline of the experience in Australia of individuals suspected of people smuggling offences who say they are children

After arriving in Australia, individuals suspected of people smuggling who claim to be children are usually subject to a process of detention, investigation and possibly prosecution.

(a) Apprehension

The process typically begins when Customs or the Royal Australian Navy intercepts a Suspected Irregular Entry Vessel (SIEV) between Indonesia and Christmas Island or Ashmore Reef. The SIEV crew and passengers are transferred to Customs or Navy vessels and transported to Christmas Island for processing.^[37]

(b) Immigration detention

After they are processed by Customs and the Australian Quarantine and Inspection Service, all passengers and crew are detained in immigration detention facilities. On arrival at Christmas Island all people smuggling crew are initially held in immigration detention in a low security closed immigration detention facility known as the Construction Camp. Individual crew members who are assessed by DIAC to be minors continue to be held in alternative places of detention until they are removed from Australia or charged and transferred to AFP custody. Crew assessed by DIAC to be adults may be transferred to an immigration detention centre, which is the highest category security facility in the Australian immigration detention network, until they are removed to Indonesia or transferred into AFP custody.^[38] Individuals suspected of people smuggling are usually issued with a Criminal Justice Stay Certificate which prevents their removal from Australia for the duration of a criminal investigation or prosecution, or until a custodial sentence is complete.

(c) Investigation

The AFP investigation process is generally focused on ascertaining the role played by the crew member in bringing asylum seekers to Australia. Until mid-2011, crew who claimed to be minors would ordinarily be asked by the AFP to give their consent for their wrists to be x-rayed.

The AFP officer will also offer a voluntary interview (which is recorded) with an individual during which the officer asks questions about why the individual undertook the journey to Australia and what he knew about the journey and the role he would play on the boat. Individuals are offered access to legal advice prior to participating in this interview and are informed of their right to decline to participate in the interview. AFP officers often ask individuals whose age is in doubt about their age during this interview. The AFP will often also conduct interviews with asylum seekers to obtain evidence concerning the activities of crew members and to seek ‘photo-board’ identification.

(d) Charge

After the AFP has completed their investigation concerning a crew member and an AFP officer is satisfied that there is sufficient evidence to charge him with a people smuggling offence and that it is appropriate to charge him, the crew member is arrested and charged.^[39]

(e) Imprisonment

Once a decision is taken by the AFP to charge a person with a people smuggling offence, DIAC arrange for the transfer of the person to the State in which he is to be charged. Upon arrival, the AFP then arrests and charges him. Generally, an accused person is initially held in a police facility, such as a police watch house. Soon thereafter he will be moved to a State or Territory prison where he is held on remand until his case is determined, or until he is released on bail. The State and Territory prison authorities decide what kind of prison facility to house him in by undertaking an assessment of his security classification. They will also consider whether it is desirable to separate an individual whose age is in dispute from adult prisoners because of his claim to be a child.

If an accused person is released on bail, he will be released into an immigration detention facility until bail is terminated or his case finalised.

(f) Prosecution

The prosecution process is commenced by the AFP. Once charged, the court determines the progress of the matter – the fastest matters progress from charge to trial in approximately six months.^[40]

An individual who has been charged as an adult may be able to challenge the jurisdiction of the court to hear his matter on the grounds that he is a child. such a circumstance, the challenge can be made at any stage of the prosecution process. Where age is raised as an issue before the court, the court will schedule an age determination hearing. During an age determination hearing, the prosecution and the defence have the opportunity to present evidence to the court about the accused person’s age. Evidence may include reports from medical experts based on a wrist x-ray and any documents obtained from Indonesia about the accused person’s age. The court will assess all of the evidence and make an age determination on the balance of probabilities. Where the court determines that an accused person is under 18 years of age, the prosecution is usually discontinued. This is in line with the Prosecution Policy of the Commonwealth which provides that the prosecution of a juvenile should always be regarded as a severe step.^[41]

Alternatively, if the court is satisfied on the balance of probabilities that an accused person is an adult, the prosecution will proceed. Where an accused person is convicted, he may be able to raise the issue of his age again before being sentenced. If he is able to do this, a new age determination hearing will take place. If the sentencing court is not satisfied that the person is over 18 years of age, the prosecution may be discontinued in line with the Prosecution Policy of the Commonwealth.

Where the age of the individual is not challenged, or is unsuccessfully challenged, and he is convicted as an adult, he will be sentenced as required by the Migration Act. This means that if he is convicted, as a first offender, of the aggravated offence of people smuggling (at least five people) he will be sentenced to imprisonment for a period of no less than the mandatory minimum sentence of five years imprisonment with a non-parole period of three years.^[42]

The time a person has spent in immigration detention and on remand will ordinarily be taken into account for sentencing purposes with the result that it will be deducted from the period of imprisonment required to be served. A person convicted and sentenced as an adult will be transferred to an adult prison facility for the duration of his sentence. Once he has served his sentence, he will be returned to Indonesia.

6 Australia’s human rights obligations

As noted above, this Inquiry is primarily considering the extent to which acts or practices of the Commonwealth may be inconsistent with or contrary to any human right. This section of the report explains the relevance of international human rights law to the issues of concern to this Inquiry.

Australia has chosen to enter into agreements – conventions, covenants or treaties – with other sovereign States. It has thereby agreed to be bound by the international scheme of rights and responsibilities that governs the way in which sovereign States deal with each other and treat individuals within their jurisdiction.

For the purposes of this Inquiry the most important of the treaties to which Australia is a party is the Convention on the Rights of the Child (CRC). The CRC recognises that children, as well as adults, are entitled to protection of their basic human rights, but that children require special protection because of their vulnerability to exploitation and abuse. For the purposes of the CRC, children are defined as individuals who are under 18 years of age.^[43] Australia’s obligations under the CRC apply to all children in Australia, regardless of citizenship or immigration status.

The articles of the CRC that are relevant to this Inquiry include:

article 2(1) – the general prohibition against discrimination
article 3 – the protection of the best interests of the child
article 9(3) – the right of the child to maintain contact with parents on a regular basis
article 9(4) – the State’s duty to provide parents of separated children with information about the children’s whereabouts
article 12(1) – the right of the child to be heard
article 16 – the protection of the child’s privacy, family and home
article 18(1) – the best interests of the child to be the primary concern of a guardian
article 19(1) – the physical and mental protection of the child
article 20(1) – that special protection and assistance is to be provided for a child deprived of his or her family environment
article 37(b) – that detention is a measure of last resort and for the shortest appropriate period of time
article 37(c) – that children deprived of their liberty are treated with humanity and respect for the inherent dignity of the human person
article 37(d) – that children deprived of their liberty to be provided legal assistance and the right to challenge their detention
article 40(1) – concerning treatment of children alleged to have infringed penal law.

In addition to the CRC, there are other general human rights obligations of relevance to this Inquiry. Obligations under the following articles of the International Covenant on Civil and Political Rights (ICCPR) are of particular relevance:

article 9 – the prohibition on arbitrary detention
article 10 – the humane treatment of people deprived of their liberty
article 14 – the right to have a conviction and sentence reviewed.

6.1 The principle of the benefit of the doubt

The CRC requires that an individual who says that he or she is a child should be given the benefit of the doubt and treated as a child unless or until it is conclusively shown that he or she is not a child.

When making an assessment of whether an individual is a child, the UN Committee considers that State parties should apply the principle of the ‘benefit of the doubt’. This means that, ‘if there is a possibility that the individual is a child, she or he should be treated as such’.^[44] It follows that all of the special rights and protections contained within the CRC must be afforded to an individual who says he or she is a child unless or until it is established that the individual is not a child. The same view has been expressed by the Office of International Law within AGD in an advice to the Criminal Justice Division of AGD.^[45]

The UN Committee has made a number of specific comments regarding the principle of the benefit of the doubt. For example, in assessing whether an individual is a child for the purpose of a criminal proceeding carrying the death penalty in the Philippines, the UN Committee made a concluding observation that the State should carry the burden of proof in the determination of age. It stated that:

The State party should also take immediate legislative and other measures to oblige authorities, such as police, prosecutors, defence, judges and social workers, to present evidence in courts regarding the precise age of an accused person, or if failing to do so give a person the benefit of the doubt, in order to ensure that persons under 18 years of age are not sentenced to death or another adult punishment.^[46]

The UN Committee has further commented that where age assessment processes are inconclusive, the individual should be given the benefit of the doubt, stating:

If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.^[47]

In the event that there is no proof of age and it cannot be established that the child is at or above the minimum age of criminal responsibility, the child shall not be held criminally responsible.^[48]

The principle of the benefit of the doubt requires that an individual who says that he or she is a child be afforded all the special protections and rights contained in the CRC. If the benefit of the doubt is not given to an individual whose age is in doubt, and it is later determined that he or she is, in fact, a child, it is possible that the Commonwealth will not have met its obligation to ensure that the rights set out in the CRC were afforded to the child.

6.2 The best interests of the child as a primary consideration

That the best interests of the child must be a primary consideration in all actions concerning children is one of the key principles of the CRC. It is also the human rights principle that is at the heart of this Inquiry. Article 3(1) provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

As an overriding principle of the CRC, article 3(1) is applicable to every article of the CRC.

While there can be no one definition of what will be in the best interests of each and every child, a child’s ability to enjoy all of his or her rights in a given environment is a good indication of whether the child’s best interests are being met.^[49]

The effect of article 3(1) is that the Commonwealth and all its officers must ensure that the best interests of individuals suspected of people smuggling offences who say that they are children are a primary consideration in all decisions and actions concerning them unless they are manifestly adults.It is not inconsistent with article 3(1) for there to be other primary considerations but they cannot be regarded as of greater significance than the best interests of the child.

The United Nations Committee on the Rights of the Child (UN Committee) emphasises the importance of ensuring that domestic law reflects article 3(1), together with the other identified general principles. It states that the best interests principle:

requires active measures throughout Government, parliament and the judiciary. Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions – by, for example, a proposed or existing law or policy or administrative action or court decision, including those which are not directly concerned with children, but indirectly affect children.^[50]

There is no direct reference to age assessment processes in the CRC. However, the UN Committee has made plain that article 3 requires State parties such as Australia to take positive steps to ensure that age assessment processes in the case of unaccompanied and separated children are conducted in a child’s best interests.^[51]

6.3 Incorrect age assessment may lead to significant human rights breaches

Where a young person is not afforded the benefit of the doubt and is mistakenly assessed to be an adult, it is likely that there will be significant breaches of his or her human rights. A young person assessed to be an adult is unlikely to have his or her best interests regarded as a primary consideration. If his or her best interests are regarded as a primary consideration, the young person will be treated differently from adults and his or her other rights set out in the CRC respected.

The sections below outline some of the other rights set out in the CRC that may be breached where a person suspected of a people smuggling offence who says that he is a child is mistakenly assessed to be an adult.

(a) The right to liberty and the rights of children deprived of their liberty

Article 37(b) of the CRC provides that children must only be arrested, detained or imprisoned as a measure of last resort and for the shortest appropriate period of time.

Article 37(c) is the key right contained within the CRC that applies to the situation of individuals suspected of people smuggling who said that they were children once they were detained. It applies to all forms of deprivation of liberty, and so must be considered in light of the holding of young Indonesians suspected of people smuggling in immigration detention as well as their detention in adult correctional facilities after they have been charged.

Article 37(c) requires that a child deprived of his or her liberty be treated in a manner which takes into account the needs of a person of his or her age and that the child be ordinarily separated from adults. It provides:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

While Australia has a reservation to article 37(c) of the CRC, the Australian Government at the time of reservation made it clear that its concerns with the article related to whether children in juvenile detention could maintain contact with their families, given the geography and demography of Australia.^[52]

These rights are also set out in the ICCPR. Article 10(2)(b) provides that ‘[a]ccused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication’ and article 10(3) provides that ‘[j]uvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status’.

Article 37(d) further provides that:

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.^[53]

The right to challenge the legality of detention is also set out in article 9(4) of the ICCPR which states that ‘anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful’.

The UN Committee has recommended that once a child is arrested and placed in detention, the child is to be brought before a competent authority to examine the legality of his detention as soon as possible.^[54] In relation to extended detention and pre-charge delay, the UN Committee has commented that:

in many countries, children languish in pretrial detention for months or even years, which constitutes a grave violation of article 37(b) of CRC. An effective package of alternatives must be available ... for the States parties to realize their obligation under article 37(b) of CRC to use deprivation of liberty only as a measure of last resort.^[55]

Accordingly, States should enact legislative and policy measures to reduce the use of pre-trial detention, for example, by granting bail where possible in the individual circumstances and considering the best interests of the child.

Article 9(3) of the ICCPR is also relevant to lengthy pre-charge detention. It states:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Article 9(3) contains an indirect entitlement to release from pre-trial detention in exchange for bail or some other guarantee.^[56] The Human Rights Committee considers that bail should ordinarily be granted unless circumstances exist which would make it unreasonable to do so. It has commented that:

pre-trial detention should be the exception and ... bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the State party. The mere fact that the accused is a foreigner does not of itself imply that he may be held in detention pending trial.^[57]

Finally, the right to be free from arbitrary detention is also relevant to the issues under consideration in this Inquiry. Article 37(b) of the CRC provides that ‘[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily’. In addition, article 9(1) of the ICCPR provides:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Detention may be arbitrary notwithstanding that it is authorised by law. The ICCPR has been interpreted as providing that ‘all unlawful detentions are arbitrary; and lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability or proportionality’.^[58] Further, detention must be necessary in all the circumstances and must not continue beyond the period for which a State party can provide appropriate justification.^[59] For this reason, pre-charge detention for a period of time that is unjust, unreasonable and disproportionate to a State’s legitimate aim, may be contrary to the prohibition against arbitrary detention in article 9(1).^[60]

(b) The rights of children alleged to have committed an offence

In recognising the right of every child suspected of committing an offence to be treated in a manner consistent with the child’s sense of dignity and worth, article 40(2)(b) of the CRC provides minimum procedural guarantees in the criminal process. Of relevance to this Inquiry, every child is entitled:

to be presumed innocent until proven guilty according to law^[61]
to be informed promptly and directly of the charges against him or her, and if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence^[62]
to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interests of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians^[63]
if considered to have infringed the penal law, to have this decision and any [other] measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law^[64]
to have the free assistance of an interpreter if the child cannot understand or speak the language used.^[65]

In the view of the UN Committee, children who are in conflict with the law should be treated in a manner that is consistent with their sense of dignity and worth throughout the entire criminal justice process. Their treatment should take into account their age and promote their reintegration in society.^[66] Of particular relevance, the UN Committee is concerned about the length of delay in judicial processes, having stated:

Internationally there is a consensus that for children in conflict with the law the time between the commission of the offence and the final response to this act should be as short as possible. The longer this period, the more likely it is that the response loses its desired positive, pedagogical impact, and the more the child will be stigmatized. ...

The Committee recommends that the States parties set and implement time limits for the period between the commission of the offence and the completion of the police investigation, the decision of the prosecutor ... to bring charges against the child, and the final adjudication and decision by the court. ... These time limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected.^[67]

Finally, under article 40(3), States are required to promote measures for children in conflict with the law that do not involve judicial proceedings, provided that human rights and legal safeguards are fully respected.

(c) The rights of children to be protected from all forms of physical or mental violence

If a child is detained or sentenced as an adult due to inadequate age assessment procedures, that child may be at risk of mistreatment. Article 19(1) of the CRC provides that:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Article 19(1) reaches to the treatment of children within institutions and in the justice system.^[68]

Article 19 recognises the particular vulnerability of children to violence, injury or abuse, neglect, maltreatment or exploitation. Children who are mistakenly held in adult facilities face a heightened risk in this regard. An obvious preventive and ‘protective measure’ as required in article 19(2) would be to ensure children are separated from adults, including where age is in dispute.

(d) The rights of a child separated from his family

The CRC requires Australia to ensure that children lacking the support of their parents receive the extra help that they need to guarantee the enjoyment of all rights set out under the CRC and other international human rights instruments.

Article 20(1) of the CRC recognises the particular vulnerability of unaccompanied children who face language and cultural barriers, andprovides that ‘[a] child temporarily or permanently deprived of his or her family environment ... shall be entitled to special protection and assistance provided by the State’.

Effective guardianship is an important element of the care of unaccompanied children. Article 20(2) of the CRC requires Australia to ensure the ‘alternative care for such a child’, which may be met through the appointment of a guardian.

Article 18(1) of the CRC specifies that the best interests of the child shall be the basic concern of a legal guardian. General Comment 6 of the UN Committee explains this obligation further:

States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests. Therefore, States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or jurisdiction of the State. ... The guardian should be consulted and informed regarding all actions taken in relation to the child. The guardian should have the authority to be present in all planning and decision-making processes, including immigration and appeal hearings, care arrangements and all efforts to search for a durable solution. The guardian or adviser should have the necessary expertise in the field of childcare, so as to ensure that the interests of the child are safeguarded and that the child’s legal, social, health, psychological, material and educational needs are appropriately covered by, inter alia, the guardian acting as a link between the child and existing specialist agencies/individuals who provide the continuum of care required by the child. Agencies or individuals whose interests could potentially be in conflict with those of the child’s should not be eligible for guardianship.^[69]

Article 16 of the CRC provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family and home. Consequently, a child who is separated from one or both parents has the right to maintain personal relations and direct contact with both parents on a regular basis, except if this would be contrary to the child’s best interests (article 9(3)). Where such separation results from any action by a State party (including detention of the child), the State party shall, on request, provide both parents, the child or, if appropriate, another member of the family, with the essential information concerning the whereabouts of the absent members of the family unless it would be detrimental to the well-being of the child (article 9(4)).

(e) The right of the child to be heard

A child has the right to express their views and to have those views taken into account in decisions that affect them.

Article 12(1) of the CRC provides that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

Article 12 underlines children’s status as individuals with fundamental human rights, views and feelings of their own.^[70]

Article 12(2) specifically provides the child with the right to be heard in any judicial and administrative proceedings affecting him, which would include proceedings involving the determination of age, and with the right for those views to be given ‘due weight’. In this regard, the UN Committee’s General Comment 5 highlights that for rights to have meaning, effective remedies must be available to redress violations:

Children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. ... So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance.^[71]

The extent to which all of the rights discussed above were respected and protected during the investigation and prosecution of cases of young Indonesians suspected of people smuggling is discussed in Chapter 8.

^Top

^[1] Australian Human Rights Commission, Immigration Detention in Darwin (2010), p 9. At http://www.humanrights.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 9 July 2012).

^[2] P Maley, ‘Children in WA jails on smuggler charges’, The Australian, 11 November 2010. At http://www.news.com.au/children-in-wa-jails-on-smuggler-charges/story-e6frg13u-1225951673558 (viewed 9 July 2012).

^[3] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 17 February 2011.

^[4] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 31 March 2011, p 3.

^[5] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011.

^[6] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 14 July 2011; Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 8 November 2011.

^[7] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 August 2011.

^[8] See, for example, R Carbonell, ‘Alleged people smugglers x-rayed to prove age’, ABC News, 27 June 2011. At http://www.abc.net.au/news/2011-06-27/alleged-people-smugglers-x-rayed-to-prove-age/2773398 (viewed 9 July 2012); M Dodd, ‘Alarm at abuse of asylum boat boys’, The Australian, 12 July 2011. At http://www.theaustralian.com.au/national-affairs/alarm-at-abuse-of-asylum-boat-boys/story-fn59niix-1226092675802 (viewed 9 July 2012); ‘Indonesian boys “wallowing” in Australian jails’, ABC News, 17 October 2011. At http://www.abc.net.au/news/2011-10-17/indonesian-boys-held-in-aust-jails/3574268 (viewed 9 July 2012); M Carlton, ‘The shame we keep locked away’, Sydney Morning Herald, 22 October 2011. At http://www.smh.com.au/opinion/politics/the-shame-we-keep-locked-away-20111021-1mc7p.html (viewed 9 July 2012).

^[9] H Cohen and R Henschke, ‘Casualties in the war on people-smuggling’, ABC Radio National, 30 October 2011. At http://www.abc.net.au/radionational/programs/backgroundbriefing/casualties-in-the-war-on-people-smuggling/3601454 (viewed 9 July 2012); N O’Brien and C Marriner, ‘Plucked from poor villages, boys land in jail’, Sydney Morning Herald, 6 November 2011. At http://www.smh.com.au/national/plucked-from-poor-villages-boys-land-in-jail-20111105-1n14h.html (viewed 9 July 2012); K Marks, ‘Australia’s shame over its forgotten teenage prisoners’, The Independent, 14 November 2011. At http://www.independent.co.uk/news/world/australasia/australias-shame-over-its-forgotten-teenage-prisoners-6261947.html (viewed 9 July 2012).

^[10] R v Daud [2011] WADC 175, 255; R v RMA [2011] WADC 198, 69. In R v Daud the judge noted that the expert witness called by the prosecution (Dr V. Low) was not a qualified statistician. His Honour accepted the criticisms made of his evidence by defence witnesses, accepting their evidence where it conflicted with Dr V. Low’s and rejecting the statistical probabilities of the accused being the chronological age reported by Dr V. Low. In R v RMA the judge accepted that the method employed by Dr V. Low was flawed and expressed the opinion that ‘the method employed by Dr V. Low and the assumptions upon which it is bases render his opinion unreliable’.

^[11] It appears that the tendency of females to achieve skeletal maturity earlier than males means that the use of wrist x-rays to assess whether they were over the age of 18 years would be even more problematic in their case.

^[12] Australian Human Rights Commission Act 1986 (Cth), s 21(1).

^[13] Migration Act 1958 (Cth), s 233A(1).

^[14] Migration Act 1958 (Cth), s 233C(1).

^[15] Migration Act 1958 (Cth), s 233A; Crimes Act 1914 (Cth), s 4AA.

^[16] Migration Act 1958 (Cth), s 233C; Crimes Act 1914 (Cth), s 4AA.

^[17] Migration Act 1958 (Cth), ss 233C, 236B.

^[18] Migration Act 1958 (Cth), s 236B(2).

^[19] Migration Act 1958 (Cth), s 236A.

^[20] Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the making of decisions in the prosecution process, November 2008 (Commonwealth Prosecution Policy), p 9. At http://www.cdpp.gov.au/Publications/ProsecutionPolicy/ProsecutionPolicy.pdf (viewed 9 July 2012).

^[21] Australian Government, Joint submission, Submission 30, p 6.

^[22] Crimes Amendment (Age Determination) Act 2001 (Cth).

^[23] R v Hatim [2000] NTSC 53.

^[24] Crimes Act 1914 (Cth), s 3ZQB.

^[25] Crimes Regulations 1990 (Cth), reg 6C(2).

^[26] Crimes Act 1914 (Cth), s 3ZQH.

^[27] Crimes Act 1914 (Cth), ss 3ZQB, 3ZQC.

^[28] Legal Officer, CDPP Sydney Office, Minute to Senior Assistant Director, CDPP Sydney Office, 3 September 2011 (GEO028 – CDPP document 006.0071).

^[29] Federal Agent, AFP Office, Case Note: Crew identified as a minor, 29 March 2011 (CLA061 – AFP document 1). This child was deported to Indonesia by DIAC within three weeks of interception.

^[30] Greg Hogan, Submission 24, pp 7–10.

^[31] Figures drawn from documents provided to the Commission.

^[32] Victoria Legal Aid, Submission 13, p 4. Victoria Legal Aid provided this information based on a visit to Rote Island made by VLA lawyers.

^[33] Victoria Legal Aid, Submission 13, p 4.

^[34] Victoria Legal Aid, Submission 13, p 4.

^[35] Victoria Legal Aid, Submission 13, p 4.

^[36] The Commission has only considered those individuals who arrived in Australia between 28 September 2009 and 22 November 2011.

^[37] Australian Government, Joint submission, Submission 30, p 22.

^[38] Department of Immigration and Citizenship, Submission 37 – Attachment, p 1.

^[39] Australian Government, Joint submission, Submission 30, p 24.

^[40] Australian Government, Joint submission, Submission 30, p 24.

^[41] Commonwealth Prosecution Policy, note 20.

^[42] Migration Act 1958 (Cth), ss 233C, 236B.

^[43] Convention on the Rights of the Child, 1989 (CRC), art 1. At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 9 July 2012).

^[44] UN Committee on the Rights of the Child, General Comment No. 6 – Treatment of Unaccompanied and Separated Children Outside their Country of Origin, UN Doc CRC/GC/2005/6 (2005) (General Comment 6), para 31(i). At http://www.unhcr.org/refworld/docid/42dd174b4.html (viewed 9 July 2012).

^[45] Senior Legal Officer, Office of International Law, AGD, Letter to Principal Legal Officer, People Smuggling and Border Protection Section, AGD, 2 May 2011 (AGD document PROS-27), p 8.

^[46] UN Committee on the Rights of the Child, Report of the UN Committee on the Rights of the Child, Thirty-Ninth Session, UN Doc CRC/C/150 (2005), para 130. At http://www.unhcr.org/refworld/docid/44182d714.html (viewed 9 July 2012).

^[47] UN Committee on the Rights of the Child, General Comment No. 10 – Children’s Rights in Juvenile Justice, UN Doc CRC/C/GC/10 (2007) (General Comment 10), para 39. At http://www.unhcr.org/refworld/docid/4670fca12.html (viewed 9 July 2012).

^[48] General Comment 10, above, para 35.

^[49] R Hodgkin and P Newell, Implementation Handbook for the Convention on the Rights of the Child (3^rd ed, 2007) (CRC Implementation Handbook), pp 37–38. At http://www.unicef.org/publications/files/Implementation_Handbook_for_the_Convention_on_the_Rights_of_the_Child_Part_1_of_3.pdf (viewed 9 July 2012).

^[50] UN Committee on the Rights of the Child, General Comment No. 5 – General Measures of Implementation of the Convention on the Rights of the Child, UN Doc CRC/GC/2003/5 (2003) (General Comment 5), para 12. At http://www.unhcr.org/refworld/docid/4538834f11.html (viewed 9 July 2012). General Comments are considered to have interpretative value in considering rights under the CRC.

^[51] General Comment 6, note 44, para 31.

^[52] See Australian Government, Australia’s Combined Second and Third Reports under the Convention on the Rights of the Child, Attorney-General’s Department (2003), paras 466–467. At http://www.dfat.gov.au/hr/downloads/australia_2nd_3rd_reports_convention_rights_child.pdf (viewed 9 July 2012).

^[53] See also, International Covenant on Civil and Political Rights, 1966, art 9(4). At http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html (viewed 9 July 2012).

^[54] General Comment 10, note 47, para 83. The Committee has made a recommendation that children be brought before a competent authority within 24 hours.

^[55] General Comment 10, above, para 80.

^[56] M Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2^nd ed, 2005), p 234.

^[57] Human Rights Committee, Hill v Spain, Communication No. 526/1993, UN Doc CCPR/C/59/D/526/1993 (1997), para 12.3. At http://www.ohchr.org/Documents/Publications/SDecisionsVol6en.pdf (viewed 9 July 2012).

^[58] Manga v Attorney-General [2000] 2 NZLR 65, [40] (Hammond J). See also Human Rights Committee, Van Alphen v The Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990). At http://www.unhchr.ch/tbs/doc.nsf/0/a4269194de1b9228c1256ac700449405?Opendocument (viewed 9 July 2012); Human Rights Committee, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997). At http://www.unhchr.ch/tbs/doc.nsf/0/30c417539ddd944380256713005e80d3?Opendocument (viewed 9 July 2012); Human Rights Committee, Spakmo v Norway, Communication No. 631/1995, UN Doc CCPR/C/67/D/631/1995 (1997). At http://www.unhchr.ch/tbs/doc.nsf/0/237a8e226edb906f8025686b005b511b?Opendocument (viewed 9 July 2012).

^[59] Human Rights Committee, C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), para 8.2. At http://www.unhcr.org/refworld/docid/3f588ef00.html (viewed 9 July 2012); D and E v Australia, Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), para 7.2. At http://www.unhchr.ch/tbs/doc.nsf/0/9dbcb136a858ebc5c12571cc00532f41?OpenDocument (viewed 9 July 2012); Omar Sharif Baban v Australia, Communication No 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003), para 7.2. At http://www.unhcr.org/refworld/docid/404887ee3.html (viewed 9 July 2012); Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003), para 9.2. At http://www.unhcr.org/refworld/country,,HRC,,PAK,,404887ed0,0.html (viewed 9 July 2012).

^[60] Human Rights Committee, General Comment No. 31 – Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) para 6. At http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocument (viewed 9 July 2012).

^[61] CRC, note 43, art 40(2)(b)(i).

^[62] CRC, above, art 40(2)(b)(ii).

^[63] CRC, above, art 40(2)(b)(iii).

^[64] CRC, above, art 40(2)(b)(v).

^[65] CRC, above, art 40(2)(b)(vi).

^[66] General Comment 10, note 47, para 13.

^[67] General Comment 10, above, paras 51–52.

^[68] CRC Implementation Handbook, note 49, pp 264–265.

^[69] General Comment 6, note 44, para 33.

^[70] CRC Implementation Handbook, note 49, p 149.

^[71] General Comment 5, note 50, para 24.

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