6 Age enquiries in Indonesia

An age of uncertainty

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

 

Chapter 6: Age enquiries in Indonesia

1 Introduction

When it can be obtained, verified documentary evidence from a person’s country of origin can be reliable evidence of that person’s age. Consequently, the making of enquiries in Indonesia about whether such documentary evidence exists is an important means of age assessment. When they are made, such enquiries are ordinarily part of the investigation process conducted by the Australian Federal Police (AFP).

The importance of making age enquiries in Indonesia is recognised by the Commonwealth. The July 2011 announcement of an ‘improved age assessment process’ included a commitment that steps would be taken ‘as early as possible to seek information from the individual’s country of origin, including birth certificates, where age is contested’.^[820]

The Commission acknowledges that there are significant logistical difficulties which impact on the AFP’s ability to make enquiries about age in Indonesia. It is also clear that the lack of comprehensive processes for officially documenting age in Indonesia increases the challenge of obtaining verified documentation of age.

From the material before the Commission it appears that age enquiries in Indonesia were not routinely conducted prior to mid-2011 and were not commenced immediately in all cases even after the July 2011 announcement. Further, in many cases, the AFP enquiries did not produce results although in some situations defence lawyers were able to source documentation themselves.

This chapter discusses:

• the process of making age enquiries in Indonesia
• the benefits and limitations of making age enquiries in Indonesia
• the Commonwealth’s approach to age enquiries in Indonesia
• concerns about the AFP efforts to locate documentary evidence of age from Indonesia
• the Commonwealth’s approach to the authenticity of documentary evidence from Indonesia.

2 The process of making age enquiries in Indonesia

The process by which the Commonwealth makes age enquiries in Indonesia involves the AFP working with the Indonesian National Police. The Joint Commonwealth submission to the Inquiry indicates that the AFP makes a request for documentation as soon as it becomes aware that an individual’s age is in doubt. It states:

To manage the risk of delays, the AFP seeks documentation [from Indonesia] as soon as it becomes aware that a people smuggling crew member claims to be a minor, and cooperates closely with the Indonesian National Police (INP) to prioritise requests for assistance.^[821]

Ordinarily this involves the AFP seeking documentary evidence of age, such as a birth certificate, through police-to-police cooperation with the Indonesian National Police.^[822] The Commonwealth has advised the Commission that police-to-police cooperation is often faster than formal requests for legal assistance.^[823] Despite this, the Commonwealth states that police-to-police cooperation can still take some time due to factors such as ‘other law enforcement priorities, road and telecommunications infrastructure, record-keeping practices and geography’.^[824]

In November 2011, due to a number of requests for evidence of age being outstanding, the AFP and the Indonesian National Police agreed that the AFP would send an officer to Indonesia to assist the Indonesian National Police with enquiries about the age of individuals suspected of people smuggling offences. The AFP officer travelled to Indonesia between 21 November and 15 December 2011.^[825] The Commission is not aware of an AFP officer travelling to Indonesia since this time.

3 The benefits and limitations of making age enquiries in Indonesia

As shown in Chapter 2, medical methods of assessing age are inexact and unreliable. Documentary evidence of age, if it can be verified, is extremely important as it is likely to be seen by a court as determinative of age. A range of documents can be used as evidence of age, including records that might be obtained from local government, schools, police or religious organisations. Affidavit evidence can also be obtained from relatives or community leaders.

From the documents before the Commission, it appears that in a significant number of cases, prosecutions of individuals charged with people smuggling offences have been discontinued following the production of affidavit evidence (and in some cases other documentary evidence) regarding age from family members and community leaders in Indonesia. In a number of cases, this evidence has been obtained by lawyers representing young Indonesians who have travelled to Indonesia to gather evidence of age from family and community leaders.^[826]

However, while documentary evidence should be a critical component of any assessment of age, it is not always easy, or indeed possible, to obtain verifiable documents to establish an individual’s age. Many young Indonesians will not have any formal documentation of their age. In some circumstances, it may be possible to obtain affidavit evidence from family, community leaders or local government officials. However, obtaining evidence of this kind will usually require travel to Indonesia.

The AFP have recently informed the Commission that official Indonesian documentation does not provide reliable evidence of a person’s age.^[827] On 24 May 2012, the AFP received advice from an academic expert about Indonesian documents concerning identity and age, including advice about:

• the processes Indonesian nationals follow to obtain identity documents, including processes for registering personal information for official purposes
• the reliability of Indonesian identity documents, particularly birth certificates
• Indonesian attitudes regarding the significance of a person’s date of birth
• the range of calendars that are used in Indonesia.^[828]

In summary, the advice was that:

official Indonesian identity documentation systems are subject to such significant systemic problems as to render the documents produced by this system extremely unreliable in formally determining identity or age.^[829]

The Joint Commonwealth submission to the Inquiry also notes that Australian agencies face particular challenges in establishing the identity and assessing the age of persons from developing countries who arrive in Australia without documentary evidence.^[830] The Joint Commonwealth submission sets out some of the specific challenges the AFP has faced in establishing the age of young Indonesians suspected of people smuggling. These include:

• the limited availability of legal documents establishing age in Indonesia
• difficulties making contact with families and officials in remote locations with limited infrastructure
• technical and legal barriers that impede cooperation with the Indonesian National Police.^[831]

3.1 Limited availability of legal documents establishing age in Indonesia

It is clear that in many cases it is difficult to obtain legal documents that establish age in Indonesia. This difficulty was outlined by the former Attorney-General in correspondence with the President of the Commission,^[832] and by the AFP in their response to a request for information for the purposes of this Inquiry.^[833] In their response to the draft report, the AFP state that they ‘do not believe that initiating inquiries in Indonesia will necessarily provide evidence of any probative value’.^[834]

In 2010, UNICEF reported that 60% of children under five in Indonesia do not have their births officially registered; this puts Indonesia in the bottom 20 countries in the world for levels of birth registration.^[835] The AFP has recently received advice that there are significant documentary and cost hurdles, combined with problems of corruption, that make the system for obtaining a birth certificate complex and sometimes impossible.^[836] The advice states that:

official Indonesian identity documentation systems are subject to such significant systemic problems as to render the documents produced by this system extremely unreliable in formally determining identity or age ... . Date of birth is generally understood in Western cultures as [a] linear indicator of a person’s age with a single point of origin that is fixed on the Gregorian calendar. Traditionally this idea was much less important in Indonesia[n] cultures than age as calculated according to a range of cyclical (and often overlapping) indigenous calendars, or by general reference to important historical markers, such as a major natural or political event.^[837]

Further the advice states:

Even where a formal birth certificate is issued (and this can be rare in remote and poor villages), it is commonly the case that the data in it is unreliable. ... Birth certificate information provided by parents may be intentionally provided in an inaccurate form to gain advantage for dishonest reasons but it may also be inaccurate even if provided in good faith, as a result of the Indonesian cultural patterns relation to age and date of birth.^[838]

In some cases, the births of Indonesian nationals suspected of people smuggling have only been registered after the individuals have been arrested in Australia. Where a birth is registered in these circumstances, the AFP has considered that it must verify the information provided to the Indonesian authorities at the time of registering the birth.^[839]

The AFP has reported challenges in confirming the authenticity of information provided to Indonesian authorities when a birth is registered. In November 2010, AFP officers prepared a Ministerial Brief on age determination processes and issues surrounding court proceedings for the then Minister for Home Affairs and Justice. The Brief discusses the difficulties associated with obtaining documentary evidence of age from Indonesia. The Brief notes that the AFP does not doubt the authenticity of birth certificates provided to the AFP through the Indonesian Consulate but has questions about the process for registering a birth in Indonesia.^[840]

The Brief also discusses in some detail the cases of three individuals, focusing particularly on the availability of documentary evidence about their age. The Brief identifies the documents obtained about their age but questions the validity of the process of registering their birth. The Brief notes a particular concern about whether supporting documentation was provided to the Civil Registry Authority in Indonesia to validate the date of birth on the young Indonesians’ birth certificates.^[841]

It is apparent that these concerns are ongoing. For example, in a February 2012 brief for the Minister for Home Affairs and Justice, the AFP report that Indonesian authorities do not:

sight documentation evidencing date of birth but rather [accept] oral advice from parents or other close associates and this can occur many years after the birth.^[842]

Advice received by the AFP on 24 May 2012 about Indonesian identity documents stated that it is easy for an individual in Indonesia to obtain false or inaccurate identity documents as these are issued ‘with little or no evidence of identity and often without citizens having to attend government offices or be sighted at all by an official’.^[843] The academic also advised that it is not unusual for Indonesians to possess multiple and inaccurate identity cards or to possess different cards with different dates of birth ‘in order to gain access to different age-determined government services’.^[844]

In its response to the draft report, the AFP made the following observation about age enquiries in Indonesia:

The AFP on occasions has conducted enquiries with the Indonesian National Police in relation to identity documents. In many instances, documentation provided is intended to assert that a person is under the age of 18 years old. Many of these forms of documentary evidence have been discredited by inquiries conducted by Indonesian authorities. In addition, Australian courts have also found that identity documentation presented during age determination hearings to be false.^[845]

The AFP provided details of a number of cases where they had received unreliable or conflicting documents regarding age. These included some cases where it appeared that documents had been altered or were fraudulent, a case where a birth certificate that was otherwise identical had been issued in two different names, a case where a birth certificate conflicted with school records, and a case where a birth certificate extract conflicted with a baptisimal certificate.^[846] The Commission recognises that there probably have been some cases where fraudulent documents were produced and that in some cases inconsistencies in documentation have arisen from poor systems of record keeping. However, this does not mean that documentary evidence of age should not be sought from Indonesia.

3.2 Difficulties in making contact with families and officials in remote locations

In circumstances where it is not possible to obtain legal documentation establishing age, it may be possible to obtain affidavit evidence from family members, community leaders or local government officials attesting to an individual’s age. The Joint Commonwealth submission to the Inquiry states that on occasion, the Indonesian National Police has provided statements from friends or relatives as to the age of an individual suspected of people smuggling.^[847]

However, it is evident that there are difficulties associated with obtaining evidence of this kind. Most relevantly, it usually requires travel to Indonesia. Moreover, many of the young Indonesians come from remote and isolated locations within Indonesia. Poor infrastructure and limited transport lead to difficulties in reaching the communities from which affidavit evidence might be obtained.

3.3 Cooperation with the Indonesian National Police

In correspondence to the Commission, the AFP has explained that they work closely with the Indonesian National Police to verify the age given by Indonesian people smuggling crew.^[848] The Joint Commonwealth submission lists some specific challenges in obtaining formal verification of age of this kind from Indonesia, including that:

• a response to a formal mutual assistance request can take several months or years
• police-to-police cooperation can take a significant period of time due to factors such as other law enforcement priorities, road and telecommunications infrastructure, record-keeping practices and geography
• there is no lawful basis for the AFP to exercise police powers, such as investigation, in Indonesia without agreement from Indonesian authorities.^[849]

4 The Commonwealth’s approach to age enquiries in Indonesia

The revised Explanatory Memorandum to the Crimes Amendment (Age Determination) Bill 2001 addressed the issue of age enquiries in the crew’s country of origin. Specifically, it explained that while such enquiries could be helpful, they were not explicitly required by the Bill. It explained:

The Bill does not contain an express requirement to exhaust all other avenues before seeking a person’s consent to, or magisterial authorisation for, a prescribed procedure. However, in practice, investigating officials will seek to determine a person’s age by all reasonable means before exercising the powers contained in the Bill. For example, if reliable documentary evidence of a person’s age is available then this may suffice.^[850]

It is not clear from the documents before the Commission precisely when the AFP first made efforts to obtain documentary evidence of age from Indonesia. However, the importance of young Indonesians being able to provide documentary evidence of their age has been recognised for some time. For example, in October 2010, a Department of Immigration and Citizenship (DIAC) officer responsible for conducting focused age assessment interviews requested assistance from DIAC case managers to locate documents to provide more information about the age of individuals whose age was in doubt. He noted the importance and urgency of locating documents to ‘lend weight or otherwise to their claims in relation to their age’ given that these individuals were subject to ongoing AFP action.^[851]

The documents before the Commission do not make clear what further action, if any, was taken at that time by either DIAC or any other government agency to locate documents to support those individuals’ statements about their age.

The importance of locating relevant documentary evidence in Indonesia was also recognised by the Office of the Commonwealth Director of Public Prosecutions (Office of the CDPP) in early 2011. On 3 March 2011, a Senior Assistant Director of the Office of the CDPP wrote to the AFP setting out a number of issues in relation to determining the age of people smuggling crew who say that they are children. At that time, the Office of the CDPP urged the AFP to consider whether more enquiries should be made in Indonesia, stating:

it may be worthwhile considering if anything more can be done to obtain any relevant documentation from Indonesian authorities.^[852]

It appears that there was a general AFP direction issued in mid-2011 that AFP officers should seek documents regarding age from Indonesia. On 16 June 2011, the AFP sent an email to all team leaders asking that, in all matters subject to age determination, the case officer request Jakarta to seek age related documents and to verify the authenticity of those documents. The task was to ‘back capture’ all matters before the court and was to be carried out even though it may return no results or take extensive time to complete.^[853]

At the Australia-Indonesia Consular Consultations held in late June 2011, the AFP undertook to discuss steps to improve cooperation on obtaining age identification documentation with their Indonesian counterparts and to agree to an improved process going forward.^[854] Talking points prepared for the meeting state that the AFP:

is taking steps to as early as possible seek birth certificates and other relevant information for crew from Indonesia where age is contested. The working group recognised that it is important that AFP engage as early as possible with Indonesian authorities to seek birth certificates and other documentation as it is currently sometimes being provided too late.^[855]

As noted above, on 8 July 2011, the Government announced an ‘improved process’ for determining age in people smuggling matters, which included taking early steps to seek information from the individual’s country of origin. It does not appear that these steps were in fact taken immediately. In the weeks following the Government’s announcement of the ‘improved age assessment process’, the Office of the CDPP wrote to the AFP asking them to make greater efforts in making enquiries to locate evidence of age in Indonesia. On 15 July 2011, the Deputy Director of the Office of the CDPP sent a letter to the National Manager of Crime Operations at the AFP advising that:

The AFP should in all cases where there is some doubt as to an individual’s age make proactive inquiries, at the earliest stage possible, to seek any relevant information from Indonesia. This includes cases where age may not yet have been formally raised as an issue in the proceedings.^[856]

On 22 July 2011, the AFP replied:

AFP case officers have been reminded of the requirement to conduct enquiries with an individual’s country of origin and seek relevant documentation, as soon as it is suspected that the person may be a juvenile, or where age becomes an issue.^[857]

However, the Office of the CDPP continued to hold concerns that enquiries were not being made in all cases. On 2 August 2011, the Office of the CDPP again wrote to the AFP urging it to make efforts to conduct enquiries in Indonesia of the type that had been announced on 8 July 2011.^[858] The email notes that it appeared that neither enquiries in Indonesia nor a dental x-ray had been undertaken by the AFP in the individual matter of OFD030 and that the Office of the CDPP:

is extremely concerned that given the Government’s announcement, the failure to have commenced implementing the improved processes for age determination prior to these matters coming before the courts may attract very significant criticism and could cause embarrassment to the Commonwealth.^[859]

Documents before the Commission indicate that making age enquiries through formal channels could be a lengthy process. In October 2011, the Attorney-General’s Department (AGD) received an email from an officer at the Australian Embassy in Indonesia requesting information on the length of time taken to determine age and repatriate minors to Indonesia. The email suggests that the age determination process was a subject of discussion at meetings between senior Indonesian and Australian officials. The AGD officer advised the Department of Foreign Affairs and Trade officer that one of the processes creating delays in the time taken to process individual crew was the length of time taken for a response to be received from the Indonesian National Police to requests for documents from the AFP. The AGD officer stated:

Current advice is that it is taking [Indonesian National Police] 2–3 months to either provide AFP with verified documents or confirm that they have not been able to locate any documents. We understand from AFP that the [Indonesian National Police] has been reluctant at times to prioritise the AFP’s requests.^[860]

Following the decisions in R v Daud and R v RMA, discussed in Chapter 3, in which the Court had preferred other evidence of age to that given by Dr V. Low, the Office of the CDPP decided that it would not continue to prosecute cases where the only probative evidence of age was a wrist x-ray.^[861] The Office of the CDPP also considered the length of time that it would be reasonable to wait for a result from an enquiry made in Indonesia. A Senior Assistant Director of the Office of the CDPP sent an internal email discussing the approach to be taken. The email, dated 15 November 2011, states:

If the issue of age determination depends almost exclusively on the receipt of [information from Indonesia], I suggest that we ask the AFP to provide its results within a period of six weeks. If the material is not received in that time and it is apparent that it is not likely to be forthcoming in the near future, and there is no other material which raises a strong reason to be kept on foot, then I suggest we carefully consider stopping the prosecution.^[862]

The Commission has not been able to make an assessment of whether these time frames have been observed in the period of time since November 2011.

5 Concerns about AFP efforts to locate documentary evidence of age from Indonesia

At the Inquiry hearing for Commonwealth agencies, the AFP gave evidence that they had been working closely with the Indonesian National Police through AFP liaison officers based in Jakarta for some time.^[863] However, as the discussion above indicates, there was not a systemic approach to making age enquiries in Indonesia until at least mid-2011.

According to the AFP, while the Indonesian National Police indicated a willingness to assist to locate more documentary evidence about age, the AFP continued to confront a number of challenges in obtaining the kind of evidence that they sought. Challenges included the limited availability of Indonesian National Police officers to conduct the enquiries required, particularly in remote locations, the time taken to respond to requests for evidence and also the difficulties with obtaining evidence that complies with the requirements of Australian laws of evidence.^[864]

It is clear to the Commission that these are genuine challenges. However, documents before the Commission suggest that, in many cases, inadequate efforts were made to conduct enquiries regarding age related information in Indonesia. For example:

• in many cases, no enquiries about age were made in Indonesia at all
• in many cases there was a long delay before the AFP made enquiries in Indonesia
• in some cases the defence obtained evidence from Indonesia when the AFP was not able to do so
• in some cases the AFP was reluctant to undertake enquiries in Indonesia
• an AFP officer was not deployed to Indonesia to make specific enquiries about age until November 2011.

5.1 In many cases no enquiries about age were made in Indonesia at all

The Commission has received documents regarding a significant number of cases in which it appears that no request was ever made by the AFP to the Indonesian National Police for documents relating to an individual’s age.

This includes the matter of WAK087, who was convicted of a people smuggling offence as an adult in February 2011. There was no evidence of his age other than evidence based on his wrist x-ray. During his entry interview WAK087 had provided DIAC with the phone number of a friend in Indonesia and stated that he had an identity card at his home in Indonesia.^[865] However, it appears that no request was ever made by the AFP to the Indonesian National Police for documents relating to the age of this young Indonesian. WAK087 maintains that he was a child when he arrived in Australia.^[866]

In another case, FLE048 claimed to be 15 years old when he arrived in Australia in April 2009.^[867] He was convicted as an adult in October 2009. The only evidence of his age was based on his wrist x-ray. During his entry interview FLE048 had provided authorities with the telephone number for his aunt in Indonesia.^[868] However, it appears that no attempt was made by the AFP to speak with his aunt or to seek documents relating to his age from Indonesia.

In a further matter, OXL003 claimed to be 14 years old when apprehended in April 2010 and was charged as an adult by the AFP in November 2010. It appears from the documents provided to the Inquiry that no request was made by the AFP to the Indonesian National Police for documents relating to the age of this young Indonesian. During his entry interview OXL003 had told DIAC that they would be able to contact his family by using the mobile phone owned by the captain of the vessel who was also in DIAC custody at that time. In September 2010, a DIAC case manager was satisfied that OXL003 was under 15 years old.^[869] A DIAC focused age assessment report completed in February 2011 assessed that he was under 18 years old based on his appearance, behaviour and family history.^[870] In October 2011, the AFP agreed with a recommendation of the Office of the CDPP to discontinue the case as there was no evidence of his age other than an analysis of his wrist x-ray.^[871] The case was discontinued in November 2011, 19 months after OXL003 first claimed to be a child.^[872]

5.2 In many cases there was a long delay before the AFP made enquiries in Indonesia

From the documents before the Commission, it appears that the AFP has not always sought information about age from Indonesia in a timely manner.

As set out above, the talking points prepared for the Australia-Indonesia Consular Consultations on 30 June 2011 indicated that the AFP was taking steps to make age enquiries in Indonesia ‘as early as possible’. Further, as noted above, an element of the ‘improved process’ of assessing age announced on 8 July 2011 was that the AFP would be taking ‘steps as early as possible’ to seek information about age from Indonesia.

Material before the Commission shows that until mid-2011, in a significant number of cases, a substantial amount of time passed between the time a young Indonesian was apprehended and the AFP making its first request to Indonesia for evidence about his age. For example:

• No enquiries were directed to Indonesia about an individual apprehended in December 2009 until April 2011; that is, 17 months later.^[873]
• No enquiries were directed to Indonesia about an individual apprehended in June 2010 until March 2011; that is, 9 months later.^[874]

It appears that in many cases, the AFP’s first request to Indonesia for documents relating to an individual’s age was only made after all case officers were requested to make such requests on 16 June 2011. For example:

• No enquiries were directed to Indonesia about an individual apprehended in December 2009 until June 2011; that is, 18 months later.^[875]
• No enquiries were directed to Indonesia about an individual apprehended in March 2010 until July 2011; that is, 16 months later.^[876]
• No enquiries were directed to Indonesia about an individual apprehended in June 2010 until July 2011; that is, 13 months later.^[877]

It appears that there were significant delays in making enquiries even in cases where an individual provided the authorities with contact details such as a phone number for family members in Indonesia. This was often done in a DIAC entry interview shortly after apprehension. For example:

• During his DIAC entry interview in January 2010, NTN032 informed DIAC that his father’s contact telephone number was in the telephone in his possession when he arrived.^[878] However, attempts to obtain information from Indonesia were not made until August 2011; that is, 19 months later.^[879] In August 2011, NTN032 agreed that he was 18 years of age at the time of his alleged offence; however he raised the question of his age again in September 2011.^[880] He ultimately admitted that he was over 18 and advised that he wished to plead guilty in September 2011.^[881]
• JDT046 who arrived in February 2010 provided information to DIAC in his entry interview that could have been used to assist in an assessment of his age.^[882] No enquiries in Indonesia were made before he was arrested and charged. In May 2011, almost six months after JDT046 was charged, the AFP and the Office of the CDPP considered whether there might be some way to verify the information he gave about his age in his DIAC entry interview. They decided to request an expert report from an expert in Indonesian studies on the information.^[883] In June 2011, the AFP received a statement from a village government body stating that JDT046 was approximately under the age of 18 years.^[884] In July 2011, the AFP received the expert report that indicated that it was likely JDT046 was under 18 years of age.^[885] The prosecution was discontinued in August 2011; that is, 18 months after he had arrived in Australia.^[886] JDT046 spent 537 days in detention in Australia, 239 of those in an adult correctional facility.

In an internal AFP email discussing the deployment of an AFP officer to Indonesia to obtain documentary evidence of age, it was noted that there was a backlog of outstanding requests made to the Indonesian National Police to obtain documentary evidence of age and that many of those requests related to individuals who had already been returned to Indonesia. It appears that there was no system in place for notification to be made to the Indonesian National Police when an individual had been returned to Indonesia and no further enquiries were required.^[887]

The lack of any such system may have contributed to long delays in the return of information from Indonesia about the age of individuals suspected of people smuggling in Australia.

5.3 In some cases the defence obtained evidence from Indonesia

In some cases, defence lawyers obtained documentary evidence of age from Indonesia in situations where the AFP had either not made enquiries at all or where their enquiries had not produced any evidence of age.

In August 2011, an email from a CDPP legal officer raised the point that:

Defence lawyers here have realised they can obtain Birth Certificates very quickly if they request them through the Indonesian Consulate. We don’t have an understanding of the process of how the Consulate obtain or verify birth certificates; and AFP are not keen to make those sort of politically sensitive enquiries.

In one of my matters, defence obtained a birth certificate from the Consulate and AFP had sent a separate tasking over to Jakarta for birth certificate etc. The [Indonesian National Police] have advised AFP they cannot find any documentary evidence in Kupang and surrounding areas (which is the alleged place of birth) for the defendant. ... [An] AFP agent who was posted in Jakarta for 3 yrs and recently returned to Brisbane, has advised that it could be due to incompetent staff at the civil registry or it could be that the birth certificate defence gave is a forgery. There is no way of knowing which.^[888]

Some submissions to the Inquiry questioned why it took so long for information about age to be gathered by the AFP when representatives and advocates of some young Indonesians were able to locate either documentary evidence or testimony of family and friends very quickly. For example, Mr Anthony Sheldon’s submission to the Inquiry notes that a privately funded trip to gather documentary and affidavit evidence to support the evidence of age given by three individuals whose ages were in doubt:

took four days to complete, where evidence was verified and gathered for three clients. Upon presentation to the CDPP charges were withdrawn and the three clients repatriated. It remains difficult to accept that the AFP had adequately expended all resources of the Commonwealth over 12 months to investigate the age of these children when lawyers achieved this in just four days at their own expense.^[889]

The following example also demonstrates the comparative ease with which defence lawyers were able to obtain evidence of age from Indonesia. OFD030, who was apprehended in March 2010, told authorities that he was under 18 years of age. In July 2011, 16 months later, an official request for information about age was made by the AFP to the Indonesian National Police. The AFP informed the Office of the CDPP that requests for information about age take a minimum of three months to complete. In early August, a CDPP officer sent an email to the AFP expressing concern about the length of time it had taken for evidence other than wrist x-ray evidence to be sought. The email stated:

From March 2010 [OFD030] has consistently claimed to have been 16 years old at the time of the alleged offending. Mr [OFD030]’s representatives wrote to our Office on 11 July 2011 referring to the recent announcement on new age determination procedures and specifically requesting that the AFP make inquiries in Indonesia regarding their client’s age. On 14 July 2011 our Brisbane Office wrote to the Manger of the AFP in Brisbane, attaching a copy of the letter from Mr [OFD030]’s representatives and requesting that the information in that letter be passed to the AFP in Jakarta to assist in making inquiries in Indonesia and that efforts be made for a dental x-ray to be obtained prior to the hearing on 22 August 2011. To date we understand that no progress has been made on either of these fronts. I have also attached copies of these letters for your reference.^[890]

About one week after that email was sent, [OFD030]’s defence lawyer travelled to Indonesia and produced a sworn statement from the individual’s brother attesting to his date of birth. Ten days later the prosecution was discontinued.^[891]

In the matter of GEO027, a request for age verification information from Indonesia was made by the AFP in November 2011.^[892] In December 2011, the AFP provided the Office of the CDPP with extracts of government documents obtained from Indonesia. Although the CDPP requested further verification in the form of statements from the Indonesian Registry officials who produced the documents, the AFP was unable to obtain evidence to support the admissibility of the Indonesian Registry documents. However, in January 2012, the defence was able to take affidavits from the same registry officials from whom the CDPP had sought statements through the AFP. In addition, the defence obtained affidavit and declaration evidence from Indonesian relatives (including the individual’s father) about his age. Based on the strength of the evidence obtained by the defence, the CDPP made the decision to discontinue the prosecution.^[893]

There are also the cases of three individuals apprehended in April 2010. All three individuals immediately identified themselves to Australian authorities as children. During their DIAC entry interviews in May 2010, one individual provided his brother’s mobile number, and another provided the telephone number of a friend in Indonesia.^[894] In each of these cases, it appears from documents before the Inquiry that the AFP made no attempt to contact authorities in Indonesia or family members to obtain documentary evidence about the ages of these individuals. In January 2011 they were each charged as an adult on the basis of wrist x-ray evidence alone.

Over May to June 2011, defence representatives for all three individuals obtained baptism certificates, birth certificates and affidavit evidence from family members in Indonesia indicating that they were all children.^[895] The Office of the CDPP requested the AFP to make enquiries to verify the authenticity of these documents.^[896] In June 2011, the AFP provided verification on the baptism certificate for one individual, but had no indication on the progress for enquiries on the other two individuals.^[897] Approximately one week later, the CDPP withdrew charges against all three individuals.^[898]

It appears that in many cases where the defence have been able to obtain information about an individual’s age from Indonesia, the Office of the CDPP has been willing to withdraw the prosecution.^[899] However, it is important to note that in some of those cases it took many months after the documents were received for the prosecution to be discontinued. In addition, prior to mid-2011, the AFP and the Office of the CDPP were reluctant in some cases to accept the authenticity of documents obtained from Indonesia.

5.4 In some cases the AFP was reluctant to undertake enquiries in Indonesia

Documents before the Commission indicate that in some cases the AFP appeared reluctant to make enquiries in Indonesia, even when defence lawyers had discovered that it was likely that documents existed in Indonesia. For example, ULT055 was apprehended in August 2009 and at that time he told authorities he was 16 years old. It appears that the AFP made no enquiries in Indonesia about his age and he was charged as an adult on the basis of wrist x-ray evidence alone. In August 2010, ULT055’s defence lawyer advised that he had spoken to the individual’s mother and she said that she had his birth certificate with her in his village in Indonesia. The AFP advised that village was too remote for them to be able to contact anyone or to verify documents, stating:

To travel to [the island] you must source a vessel (through private hire) in Wanci to take you there. This area of Indonesia is very remote and generally people who live there are in a low socio economic class.

After discussion with AFP OSO in Jakarta the risk associated with travel to this remote area by private vessel is considered too high risk to achieve the outcome required. There are no reliable search and rescue service in Indonesia and no accredited airlines or transport companies that travel to this area.

Travel into this area of Indonesia requires a lot of time as airline schedules are not reliable and flights are often cancelled resulting in long stays in areas until alternative transport can be organised. ...

Contacting Polri [police] in these remote areas is very difficult due to communications issues and it is highly unlikely that we will receive any response before the 9 November 2010.^[900]

The prosecution against ULT055 continued in the absence of any evidence of age other than wrist x-ray analysis. The prosecution was eventually discontinued but only after a court found that it was not satisfied on the balance or probabilities that ULT055 was over 18 years of age at the time of the offence.^[901] ULT055 spent 454 days in detention in Australia, 424 of them in an adult correctional facility.

5.5 An AFP officer was not deployed to Indonesia to make specific enquiries about age until November 2011

At the Inquiry hearing for Commonwealth agencies, the AFP explained that, while it has officers permanently stationed in Jakarta, there were some difficulties in deploying an additional AFP officer to Indonesia to work with the Indonesian National Police to locate documentary evidence of age for young Indonesians suspected of people smuggling in Australia. The witness stated that Indonesia is:

a sovereign jurisdiction. We can’t just attend Indonesia and make our own enquiries. We have to do it with the authorisation of the Commissioner of the Indonesian National Police and there are protocols that one must follow. We needed to collect – we needed to collate all the information required, transmit that to the Indonesian National Police, give them an indication of the evidence that we required and then seek their authorisation for a member of the AFP to travel in company with them throughout the archipelago to collect the information required.^[902]

Eventually agreement was reached between the AFP and the Indonesian National Police and on 21 November 2011, the AFP sent an additional officer to Indonesia to make enquiries about the age of individuals suspected of people smuggling offences.^[903] Together with the Office of the CDPP, the AFP compiled a list of 14 cases in which obtaining documentary evidence of age was considered a priority.^[904] These were generally matters that were listed for age determination hearings in December 2011.

On 9 January 2012, the AFP officer reported the outcome of his enquiries in Indonesia. The AFP officer stated that he had worked together with the Indonesian National Police to conduct investigations regarding the age of ten individuals suspected of people smuggling. Only two of the ten individuals investigated were on the original list of 14 priority cases that had been compiled by the agencies. The AFP officer obtained identity documents for four of the ten individuals he had investigated.^[905]

Documentary evidence of age was not obtained in the majority of the 14 priority cases initially identified by the agencies. Following deployment of the AFP officer to Indonesia, the prosecutions in 11 of the 14 priority cases were ultimately discontinued.

The Commission recognises that the AFP does not have the authority or jurisdiction to conduct investigations or enquiries outside Australia without the appropriate approval and authorisation from the host country. However, it is of concern that it took until November 2011 for the AFP to make arrangements to deploy an officer to Indonesia to conduct investigations about age when there was such a well-documented history of difficulty in obtaining documents through police-to-police cooperation.

6 The Commonwealth’s approach to the authenticity of documentary evidence from Indonesia

Even when documents from Indonesia were obtained, in some cases prior to mid-2011, they were not considered by the Commonwealth to be material on which a decision to discontinue a prosecution could be based, or which they should consent to defence counsel adducing in evidence during an age determination hearing. This was because the Office of the CDPP considered that the documents did not comply with the requirements of the laws of evidence.

The Commonwealth policy of returning minors to Indonesia without charge, combined with the substantial mandatory penalties that apply to adults convicted of people smuggling offences, create an incentive for individuals to say that they are under 18 years of age. It is therefore not unreasonable for the AFP and the Office of the CDPP to require some credible evidence of age. However, in accordance with the application of the principle of the benefit of the doubt, when an individual says that he is under 18 years of age and his physical appearance does not render his claim implausible, Commonwealth agencies should treat that individual as a child until they are reasonably able to satisfy themselves that he is over the age of 18 years. This should be the primary purpose of enquiries in Indonesia.

The Commission recognises that there are real difficulties in obtaining from Indonesia documents that will be admissible as evidence in legal proceedings in Australia. It appears that the Office of the CDPP advised the AFP that records from Indonesia relating to age should be introduced in a statement by an official in charge of maintaining those records in accordance with the requirements of the Foreign Evidence Act 1994 (Cth).^[906] To obtain such a statement from an Indonesian Government official would require a formal request to be made under the Mutual Assistance in Criminal Matters Act 1987 (Cth).^[907]

However, it is important that formal requirements do not lead to a situation where a person who is in fact a minor is treated as an adult merely because the documentary evidence that supports his claim is viewed as inadmissible in legal proceedings.

In her submission to the Inquiry, Ms Edwina Lloyd, a solicitor noted her concerns with the expectation of Australian courts that documents from Indonesia relating to the age of an individual whose age is in dispute be in admissible form. She notes from her experience that the Local Court:

will not accept documentary evidence unless it is accredited by Australian legal practitioners and in a Western style format. This places an unreasonable burden on legal practitioners and the young Indonesian clients and their families to produce documentary evidence that is viewed as credible before a western court.^[908]

It appears that, prior to mid-2011, as a consequence of the preoccupation with documents about age being admissible in Australian legal proceedings, in some cases documents produced by defence lawyers and other representatives to support an individual’s statement about their age were not relied upon by the Commonwealth as evidence of age. Further, the Office of the CDPP indicated that their admissibility would be challenged if it they were sought to be adduced in evidence in an age determination hearing.

The position of the Office of the CDPP changed in mid-2011.^[909] The new position is outlined in a Minute to the Director dated 18 August 2011, regarding a specific case. It states:

This Office has stated that it would provide all material to the [courts] to assist the [courts] in making a determination about age. Given the circumstances of these matters, where both the prosecution and the defence are faced with very great difficulties in obtaining evidence in relation to a person’s age, I do not think that we should object to the admissibility of the material that the defence seeks to put before the [courts] in these matters unless there are very cogent reasons. At the same time however comment can be made about the weight that the Court should give to any evidence in circumstances where it is hearsay or is unable to be tested.^[910]

The Commonwealth Director of Public Prosecutions has described this approach to documentary material from Indonesia that the defendant wishes to tender as ‘a very unusual and permissive stance to be taken by a prosecuting entity’.^[911]

The Commonwealth Director of Public Prosecutions has provided the Commission with details of a number of cases that were discontinued, in which material from Indonesia which was not admissible was considered by the Office of the CDPP in determining whether a court was likely to be satisfied on the balance of probabilities that the defendant was an adult.^[912] In these cases the prosecution was discontinued in July 2011 or later. The Commission is aware of a number of earlier cases where documentary material from Indonesia was either not considered as evidence of age or where the Office of the CDPP indicated to defence counsel that it would challenge its admissibility.

For example, in the case of Ali Jasmin, the Commonwealth received a copy of a birth certificate in August 2010 and, in October 2010, a copy of that certificate verified by the Indonesian National Police. Despite this, the Office of the CDPP advised Ali Jasmin’s defence lawyer that the Commonwealth would dispute the admissibility of the birth certificate unless the defence obtained ‘proper evidence establishing what it is and the circumstances as to how it came into being’.^[913] In November 2010, the AFP said that they would not be asking the officers in Jakarta for further documentary evidence, stating:

The home of JASMIN’s family is fairly remote, as is usual in these matters, they are extremely busy and only have a very limited staffing capacity to undertake operational matters. ... I cannot see what this will prove, as there is simply no authority that can accurately stipulate that his date of birth is correct.^[914]

As a result, Ali Jasmin’s birth certificate was not placed before the court. He was convicted as an adult and sentenced to the mandatory minimum sentence of five years imprisonment with a three year non-parole period. On 17 May 2012, following a review by AGD of cases where age had been in dispute and a conviction had been obtained, an announcement was made that three individuals would be released from prison and returned to Indonesia.^[915] Media reports confirmed that Ali Jasmin was one of those released. He spent 878 days in detention in Australia, 781 of them in an adult correctional facility.

In the case of another individual, UPW031, who was apprehended in 2009, the defence lawyer told an officer from the Office of the CDPP in August 2010 that he had statements from community leaders in Indonesia and a birth certificate showing that his client was 15 years old. The AFP responded that the AFP position is that any documents coming out of Indonesia cannot be confirmed as genuine.^[916] In October 2010, the Office of the CDPP sent an email to his lawyer challenging the relevance of the documents provided:

In respect of the birth certificate ... [w]e also dispute that it is admissible in its present form or without calling proper evidence as to what it is and the circumstances as to how it came into being.

In relation to the letters of [the community leaders in Indonesia], it is disputed that these documents provide any relevant evidence whatsoever. In any event to the extent you deem that such evidence has any relevance we would require the parties to give evidence in person.^[917]

UPW031’s defence lawyer then informed the Office of the CDPP that he intended to make a submission to the Court to the effect that there was no investigation of age undertaken by the prosecution other than the wrist x-ray. It was not until June 2011 that the AFP first made a request for information from Indonesia.

In September 2011, the defence lawyer sent the Office of the CDPP a document from the an Indonesian official certifying the birth certificate that had previously been provided to the CDPP. The CDPP responded in a disparaging manner saying:

Thank you for your letter enclosing a note from the Regent of [name redacted]. Am I to assume that this person whose name is [name] on the official document you have emailed is in fact supposed to be [name] your client? Is there any reason why after you have clearly gone to considerable trouble you have provided from apparently an official source a completely different name on the document?

I also note the date of birth differs from the DIAC entry interview date where your client described himself as born on 29 January 1995? I note at the recent mention your client told the court via the interpreter that he was 15 at the time of the offence (after you had advised the court he had been sixteen) and this latest document would make him 14 at the relevant time. Is there any reason for these discrepancies?

No provenance of his age has been provided by you, and this latest document has no forensic value.

I also advise that the AFP has not received any response from the Indonesian authorities as to any inquiries they may be able to make.^[918]

Despite being in possession of a legalised birth certificate and two statements from community leaders attesting to the fact that UPW031 was under 18 years of age, the Office of the CDPP continued to prosecute this young Indonesian as an adult on the basis of an analysis of his wrist x-ray. The prosecution was discontinued in November 2011 after a judge of the District Court of Western Australia concluded that he was not satisfied on the balance of probabilities that UPW031 was over the age of 18 years at the time of the offence.^[919] UPW031 was in Australia for 18 months before a request for documents was made to Indonesia by the AFP, and spent 641 days in an adult correctional facility.

A further example is OXL002 who arrived in Australia in April 2010 and provided to DIAC contact details for his family in Indonesia soon after his apprehension. It appears from the documents before the Commission that the AFP made enquiries in Indonesia about his age. In August 2011, with the assistance of the Indonesian Consulate, Legal Aid provided to the Office of the CDPP a copy of his baptism certificate as evidence of his age. The Office of the CDPP forwarded the baptism certificate to the AFP and asked them to make enquiries about the document.

Legal Aid then sought an adjournment to allow the Office of the CDPP time to verify the baptism certificate. While the magistrate granted the adjournment, he commented that ‘for the Crown to verify a document which had been provided by the Indonesian Consulate was “embarrassing”’.^[920]

The AFP then advised the Office of the CDPP that there was no photograph or fingerprint on the baptism certificate and as such it was questionable whether the certificate was proof of age. They stated:

In relation to the Baptism certificate provided by the defence team for [OXL002] ... whilst we do not contest that the document is a Baptism certificate obtained through the Consulate General of the Republic of Indonesia, we do not believe that there is any feasible way of confirming the details contained therein. We doubt that we would have any success in trying to ascertain any evidence from Timor which may date from before the separation from Indonesia or that Rev. [name redacted] could be expected to recall the Baptism some seventeen years later if he is still alive and could, indeed, be located following the recent upheavals in Timor. Further, I would note that the Consulate General also declines to accept any responsibility for the contents of the document.

Our main issues with the document are: we contend the date of birth expressed in the document would have been provided by the subject’s family and may not be reliable, the document does not contain any secondary confirmation, like fingerprint identification, to show that the person referred to is the same as our defendant or even that the defendant is, in fact, the [individual] referred to in the document. We also note that there are no witnesses to the Baptism detailed on the document and that the document appears to have been prepared on 20 July 2011, possibly from some other record which is not attested to in any way.^[921]

In September 2011, the defence made submissions to the Office of the CDPP that the prosecution should be discontinued. An internal Office of the CDPP email discussing whether to discontinue the prosecution referred to the practice of the Office of the CDPP saying:

We have accepted that matters where the defence submit that their client is under 18 should go to the court to be determined in an “age determination hearing”. There is no legislative basis for such a proceeding. We have justified this approach on the basis that it is Commonwealth government policy that persons under the age of 18 are not prosecuted and that a determination by a court before a trial is conducted [in] an appropriate way to have a defendant’s age determined so that this policy may be applied.^[922]

The email then notes that there is no evidence to suggest that the document from Indonesia is fabricated, nor evidence that documents in Indonesia are ‘unreliable in this case or generally’. The officer then recommended that the prosecution be discontinued. The prosecution was discontinued on 30 September 2011. OXL002 spent 550 days detained in Australia, 289 of them in adult correctional facilities.

In a final example, LAL040, who was apprehended in October 2009, was charged as an adult in December 2009 based on wrist x-ray analysis. In July 2010, the defence adduced a birth certificate during court proceedings which indicated that he was a child. Following this, the Office of the CDPP sent the defence a letter stating that the prosecution would continue to maintain that he was an adult unless the defence could obtain more information to prove otherwise. The Office of the CDPP advised that its ‘particular concern about the document is that on its face the record of the birth appears to have been created in 2009 and would therefore be completely unreliable’.^[923] The AFP was then requested by the Office of the CDPP to verify the authenticity of the birth certificate.

In September 2010, the Indonesian National Police faxed the AFP Jakarta office an original extract from documents used to register LAL040’s birth. The date of birth matched the date of birth on the birth certificate provided by the defence. The AFP officer then asked her Jakarta-based counterpart:

if she was able to tell if the document had been forged in anyway and she was unable to tell me given it was a faxed copy. I have requested the Indonesia Police obtain a certified copy or undertake some form of inquiries to authenticate the document if possible.^[924]

The liaison officer in Jakarta reported that there were a number of anomalies in the documents and that it appeared that the ages of LAL040’s parents were inconsistent with his claimed date of birth.^[925]

In November 2010, the AFP was still seeking to verify the birth certificate that had been provided by defence five months earlier. Later that month, the Office of the CDPP contacted the defence stating:

you may be seeking to tender evidence in the nature of a birth certificate. ... We do not agree to this being tendered by consent as the documents you have shown to us lack provenance and on their face show recent creation.^[926]

At an age determination hearing in January 2011, the Magistrate found on the balance of probabilities that LAL040 was under 18 at the time of the offence.^[927] After an appearance in the Children’s Court, his prosecution was discontinued in February 2011. The Office of the CDPP noted that he ‘has now served a greater period in custody than would be imposed by a sentencing judge for a juvenile convicted of a ... people smuggling offence’.^[928] LAL040 spent 485 days in detention in Australia, 416 of which were spent in an adult correctional facility.

7 Findings

The Commission recognises that it is not always possible to obtain credible documents that establish an individual’s age, particularly in Indonesia, the country of origin of all of the individuals with whom this Inquiry is concerned. However, attempting to locate documentary evidence should be a critical component of any process of assessing age.

It appears that in many cases inadequate efforts were made by the AFP to obtain from Indonesia age related information regarding young Indonesians suspected of people smuggling.

The Commission has identified many cases in which no request was ever made to obtain documentary evidence of age from Indonesia. The Commission has also identified a number of cases in which it appears that there were long delays before the AFP contacted the Indonesian National Police to request assistance in locating documents to establish age. In a significant number of these cases, the individual had given Australian authorities contact details for relatives or friends in Indonesia who would probably have been able to give information about his age had they been contacted by Australian authorities.

It appears that in a number of cases, defence representatives were able to obtain documentary evidence of age reasonably easily, even when AFP enquiries had not produced any results. The Commission is aware that defence representatives are not constrained by the requirements of working through the agreed processes of police-to-police cooperation with the Indonesian National Police.

Nonetheless, it is of concern that an AFP officer was not deployed to Indonesia to work with the Indonesian National Police for the purpose of investigating the age of individual crew until November 2011. It appears to the Commission that it had been clear for some time that the AFP was experiencing considerable difficulties in obtaining documents through police-to-police cooperation. It is not clear why it took until November 2011 for arrangements to be made to send a dedicated AFP officer to Indonesia for the specific purpose of assisting with enquiries about age.

As the individual cases considered above show, prior to mid-2011, the Office of the CDPP was reluctant to consent to defence counsel adducing in evidence documentary material from Indonesia. As a result, in some cases where documents about age did exist, they were not considered by the Commonwealth because they could not be adduced in evidence. Nor were the courts advised of their existence. The Commission is aware of cases in which the prosecution against an individual continued even where documentary evidence suggested that he was a child. There appears to have been considerable doubt within the AFP and the Office of the CDPP about the authenticity of the information contained within documents from Indonesia, even those documents provided to the Australian authorities by the Indonesian National Police or Embassy.

The Commission notes that since mid-2011, the AFP and the Office of the CDPP have taken a more flexible approach to consideration of documents that may be inadmissible in a court proceeding. This is a welcome development, given the difficulties in obtaining documents from Indonesia that can be adduced in evidence under the formal requirements of Australian law.

^Top

---

^[820] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011; Hon R McClelland MP, Attorney-General, and Hon B O’Connor MP, Minister for Home Affairs and Justice, ‘Improved process for age determination in people smuggling matters’ (Media release, 8 July 2011). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F906838%22 (viewed 9 July 2012).

^[821] Australian Government, Joint submission, Submission 30, p 15.

^[822] Australian Government, Joint submission, Submission 30, p 15.

^[823] A formal mutual assistance request is governed by the Mutual Assistance in Criminal Matters Act 1987 (Cth).

^[824] Australian Government, Joint submission, Submission 30, p 15.

^[825] Acting Deputy Commissioner Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 5 April 2012, p 3.

^[826] For example, charges against three Indonesian boys were dropped on 1 July 2011 after the Brisbane Magistrates Court found that there was lack of evidence that they were over 18 years of age. Lawyers had travelled to the remote island of Rote in June to obtain affidavit evidence from relatives and village officials (WIL024; WIL025; WIL042).

^[827] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012, p 4.

^[828] Statement of [academic expert] re: Indonesian identity and proof of age, Federation Fellow, Director, Asian Law Centre, Faculty of Law, The University of Melbourne, 24 May 2012 (AFP document provided 29 May 2012) (Statement of [academic expert]).

^[829] Statement of [academic expert], above, p 1.

^[830] Australian Government, Joint submission, Submission 30, p 4.

^[831] Australian Government, Joint submission, Submission 30, pp 15–16.

^[832] Hon R McClelland, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 August 2011, p 3.

^[833] Commissioner, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 21 December 2011.

^[834] AFP, Response to draft report, 6 July 2012, p 22.

^[835] UNICEF, Children in Indonesia: Birth Registration (June 2010). At http://www.unicef.org/indonesia/UNICEF_Indonesia_Birth_Registration_Fact_Sheet_-_June_2010.pdf (viewed 9 July 2012).

^[836] Statement of [academic expert], note 9, p 4.

^[837] Statement of [academic expert], above, p 5.

^[838] Statement of [academic expert], above, p 5.

^[839] Hon R McClelland, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 August 2011, p 4.

^[840] Ministerial Brief – Minister for Home Affairs, Age determination process and issues surrounding court proceedings, National Manager Crime Operations, AFP, November 2010 (AFP document provided 5 April 2012) (Age determination process – Ministerial Brief).

^[841] Age determination process – Ministerial Brief, above.

^[842] Ministerial Brief – Minister for Home Affairs and Justice, People smuggling crew investigations – AFP practices and procedures, Acting Deputy Commissioner, AFP, 27 February 2012 (AFP document provided 5 April 2012).

^[843] Statement of [academic expert], note 9, p 2.

^[844] Statement of [academic expert], above, p 2.

^[845] AFP, Response to draft report, 6 July 2012, p7.

^[846] AFP, Response to draft report, 6 July 2012; LAL040; INN012; ALB057; SAN055; YND049; JUK070; JUK069; KEL055.

^[847] Australian Government, Joint submission, Submission 30, p 16.

^[848] Commissioner, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 21 December 2011, p 2.

^[849] Australian Government, Joint submission, Submission 30, pp 15–16.

^[850] Revised Explanatory Memorandum, Crimes Amendment (Age Determination) Bill 2001 (Cth), para 9. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr1246_ems_d3e6e08b-3169-4600-9186-4c53e07f9d02%22 (viewed 9 July 2012).

^[851] Deputy State Director, DIAC Tasmania Office, Email to Officers, DIAC, 8 October 2010 (DIAC document mail39642131).

^[852] Senior Assistant Director, CDPP, Letter to Assistant Commissioner, National Manager Crime Operations, AFP, 3 March 2011, p 3 (CDPP Document Attachment D document 5), p 3.

^[853] Team Leader Crime Operations, AFP, Email to Officers, AFP, 16 June 2011 (AFP document AFP_05 provided in hard copy).

^[854] Officer, Office of the Minister for Foreign Affairs, Email to Officers, AGD and Office of the Minister for Foreign Affairs, 29 June 2011 (AGD document ENG-IG-48).

^[855] Talking points on the working group on age determination to be discussed at the Australia-Indonesia Consular Consultations – Perth, AGD, 30 June 2011 (AGD document BRIEF19).

^[856] Deputy Director, CDPP Canberra Office, Letter to Assistant Commissioner, National Manager Crime Operations, AFP, 15 July 2011 (CDPP document Attachment D document 12), p 2.

^[857] Assistant Commissioner, National Manager Crime Operations, AFP, Canberra Office, Letter to Deputy Director, CDPP, 22 July 2011 (CDPP document IMP-10), p 1.

^[858] Acting Deputy Director, Legal and Practice Management and Policy Branch, CDPP, Email to Assistant Commissioner, National Manager Crime Operations, AFP, 2 August 2011 (AGD document PROS-60).

^[859] AGD document PROS-60, above.

^[860] Acting Assistant Secretary, Border Management and Crime Prevention Branch, Criminal Justice Division, AGD, Email to Third Secretary (Political), Australian Embassy Jakarta, 26 October 2011 (AGD document ENG-IG-34).

^[861] As discussed in Chapter 3.

^[862] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Legal Officers, CDPP, 15 November 2011 (CDPP document Attachment D Document 14).

^[863] Assistant Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 168.

^[864] Assistant Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 168.

^[865] Entry interview, DIAC, 29 September 2009 (WAK087 – AFP document 1).

^[866] Interview with WAK087, Australian Human Rights Commission, Pardelup Prison Farm, 27 April 2012.

^[867] Entry interview, DIAC, 23 May 2009 (FLE048 – AFP document 2); AFP, Material Facts Sheet, undated (FLE048 – CDPP document 081.0074).

^[868] Entry interview, DIAC, 31 May 2009 (FLE048 – AFP document 2).

^[869] Officer, DIAC, ‘List of crew minors @ 7.09.2010’, Attachment – Email from Officer, DIAC, to Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, 9 September 2010 (OXL003 – DIAC document mail39646801).

^[870] Age assessment interview report, DIAC, 26 February 2011 (OXL003 – DIAC document).

^[871] Federal Agent, AFP, Email to Senior Legal Officer, CDPP Brisbane Office, 20 October 2011 (OXL003 – CDPP document 268.0180).

^[872] Prosecution Report, CDPP Brisbane Office, 7 November 2011 (OXL003 – CDPP document 268.0003).

^[873] Federal Agent, AFP, Case Note: INTN – Birth Certificate inquiries in relation to [PEN059], 4 April 2011 (PEN059 – AFP document 10).

^[874] Senior Police Liaison Officer, AFP, Letter to Indonesian National Police: Request for Birth Certificate, 23 March 2011 (BOM062 – CDPP document 115.0018).

^[875] Federal Agent, AFP, Case Note: Request for documentary evidence from Indonesia, 17 June 2011 (MAL011 – AFP confidential document).

^[876] Federal Agent, AFP, Case note: INTN – Age Determination, 12 July 2011 (OFD030 – AFP document 19).

^[877] Federal Agent, AFP, Case Note: INTN – SIEV 155 crew birth certificate location/verification/authenticity, 25 July 2011 (TIW044 – AFP document 13).

^[878] Entry interview, DIAC, 12 January 2011 (NTN032 – DIAC document), p 7.

^[879] Federal Agent, AFP, Email to Senior Legal Officer, CDPP Perth Office, 13 September 2011 (NTN032 – CDPP document 317.0365).

^[880] Legal Officer, CDPP, Email to Federal Agent, AFP, 10 August 2011; Legal Officer, CDPP, Email to Federal Agent, AFP, 13 September 2011 (NTN032 – CDPP document 317.0365).

^[881] Federal Agent, AFP, Email to Counsel for defence, 27 September 2011 (NTN032 – CDPP document 0031).

^[882] Entry interview, DIAC, 4 March 2011 (JDT046 – DIAC document).

^[883] Senior Legal Officer, People Smuggling Branch, CDPP Perth Office, Email to Federal Agent, AFP, 23 May 2011 (JDT046 – CDPP document 110.0158); Senior Legal Officer, CDPP, Letter to [academic expert], Federation Fellow, Director, Asian Law Centre, Faculty of Law, The University of Melbourne, 22 July 2011 (JDT046 – CDPP document 111.0410).

^[884] Demography declaration, Village Chief of [redacted], Government of [redacted], Subdistrict of [redacted], 27 June 2011 (JDT046 – AFP document 18).

^[885] Statement of [academic expert] re: Indonesian law on voting age and Marriage Act, Federation Fellow, Director, Asian Law Centre, Faculty of Law, The University of Melbourne, 31 July 2011 (JDT046 – CDPP document 111.0004).

^[886] Prosecution Report, CDPP Brisbane Office, 15 August 2011 (JDT046 – CDPP document 111.0009).

^[887] Commander (Indonesia), AFP, Email to Assistant Commissioner, National Manager Crime Operations, AFP, 11 November 2011 (AFP document provided 5 April 2012).

^[888] Senior Lawyer, CDPP, Email to Officer, CDPP, 23 August 2011 (TIW043 – CDPP document 145.0077).

^[889] Anthony Sheldon, Submission 26, p 4.

^[890] Acting Deputy Director, Legal and Practice Management and Policy Branch, CDPP, Email to Assistant Commissioner, National Manager Crime Operations, AFP, 2 August 2011 (AGD document PROS-60).

^[891] Officer for the Director, CDPP Brisbane Office, Letter to Manager, AFP Brisbane Office, 22 August 2011 (OFD030 – AFP document 37).

^[892] Federal Agent, AFP, Case Note: INTN – Age determination of [GEO027], 25 November 2011 (GEO027 – AFP document 5).

^[893] Senior Assistant Director, CDPP, Minute to Director, CDPP, 14 February 2012 (GEO027 – CDDP document 2).

^[894] Entry interview, DIAC, 7 May 2010 (WIL025 – DIAC document); Entry interview, DIAC, 7 May 2010 (WIL042 – DIAC document).

^[895] Statement of [counsel for defence], Magistrates Court of Queensland, 14 June 2011 (WIL024 – CDPP document 127.0031).

^[896] Senior Legal Officer, CDPP, Email to Federal Agent, AFP, 16 May 2011, (WIL024 – CDPP document 125.0117).

^[897] Senior Legal Officer, CDPP, Minute to Director, CDPP, 29 June 2011 (WIL024, WIL025, WIL042 – CDPP document 323.0713).

^[898] Senior Legal Officer, CDPP, Correspondence to AFP, 5 July 2011 (WIL024 – AFP document 47).

^[899] Legal Aid NSW, Submission 35, p 6.

^[900] Federal Agent, AFP, Case Note: INTN – Request for inquiries re: [ULT055], 9 September 2010 (ULT005 – AFP document 11).

^[901] ULT055 v The Queen [No 2] [2010] WADC 169.

^[902] Assistant Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 169.

^[903] Deputy Assistant Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 169.

^[904] Lawyer, Legal, Practice Management and Policy Branch, CDPP, Email to Officers, AFP, 18 November 2011 (AFP document provided 5 April 2012).

^[905] Federal Agent, Perth People Smuggling Team, AFP, ‘Outcomes Report – Age Determination Enquiries’, 9 January 2012 (AFP document provided in hard copy).

^[906] Acting Deputy Commissioner Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 5 April 2012, p 3.

^[907] Acting Deputy Commissioner Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 5 April 2012, p 4.

^[908] Edwina Lloyd, Submission 29, p 7.

^[909] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 266.

^[910] CDPP Officer, Minute to Director, 18 August 2011, (CDPP document Attachment D document 5), p 5.

^[911] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012, p 4.

^[912] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012, p 4. WIL024; WIL025; WIL042; OXL002.

^[913] Officer for the Director, CDPP Perth Office, Letter to Counsel for defence, 18 October 2010 (CDPP document 026.0362).

^[914] Federal Agent, AFP, Email to Principal Legal Officer, People Smuggling Branch, CDPP, 24 November 2010 (CDPP document 026.0153).

^[915] Hon N Roxon MP, Attorney-General, Minister for Emergency Management, ‘Initial results of people smuggling convictions review’ (Media release, 17 May 2012). At http://www.attorneygeneral.gov.au/Media-releases/Pages/2012/Second%20Quarter/17-May-2012---Initial-results-of-people-smuggling-convictions-review.aspx (viewed 9 July 2012).

^[916] Principal Legal Officer, CDPP, File note of conversation with Federal Agent, AFP, 25 August 2010 (UPW031 – CDPP document 038.0310).

^[917] Officer for the Director, CDPP Perth Office, Letter to Counsel for defence, 12 October 2010 (UPW031 – CDPP 004.0396).

^[918] Principal Legal Officer, CDPP, Email to Counsel for defence, 22 September 2011 (UPW031 – CDPP document 039.0069).

^[919] R v RMA [2011] WADC 198.

^[920] Adjournment Report, Brisbane Magistrates Court, 12 August 2011 (OXL002 – AFP document 13).

^[921] Federal Agent, AFP Adelaide Office, Email to Senior Legal Officer, People Smuggling Branch, CDPP, 15 August 2011 (OXL002 – CDPP document 267.0226).

^[922] Legal Officer, CDPP, Email to Officers, CDPP, 23 September 2011 (OXL002 – CDPP document 267.0179).

^[923] Court notes: Perth Magistrates Court, CDPP, July 2010 (LAL040 – CDPP document 352.0175).

^[924] Federal Agent, AFP, Email to Federal Agents, AFP, 16 September 2010 (LAL040 – AFP document 15).

^[925] Federal Agent, AFP, Email to Federal Agents, AFP, 17 September 2010 (LAL040 – AFP document 16).

^[926] Principal Legal Officer, CDPP Perth Office, Email to Counsel for defence, 12 November 2010 (LAL040 – CDPP document 037.0067).

^[927] Senior Legal Officer, CDPP Perth Office, Email to Officers, CDPP, 28 January 2011 (LAL040 – AFP document 25).

^[928] Deputy Director, CDPP Perth Office, Email to Senior Assistant Director, CDPP, 11 February 2011 (LAL040 – CDPP document 323.0432).