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8 Findings and recommendations

An age of uncertainty

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

Chapter 8: Findings and recommendations

1 Introduction

The major finding of this Inquiry is that Australia’s treatment of individuals suspected of people smuggling offences who said that they were children has led to numerous breaches of both the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR).

The specific findings with regard to each of the issues considered during this Inquiry are detailed at the end of each chapter. This final chapter draws on each set of specific findings to assess whether the system of treatment of the young Indonesians suspected of people smuggling who said that they were children breached Australia’s international human rights obligations.

In conducting this Inquiry the Commission has inquired into the acts and practices of the Commonwealth. This is because it is Australia that is the State party to the CRC and the ICCPR. For this reason, the findings make broad reference to the Commonwealth. However the Commission recognises that each of the Commonwealth agencies whose acts and practices have been considered by this Inquiry have a specific role. In general terms those roles are as follows:

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

The Commission notes in particular that DIAC has no role in the investigation or prosecution of people smuggling matters and has little control over the amount of time an individual suspected of people smuggling spends in immigration detention.

2 Failure to ensure that the principle of the benefit of the doubt was afforded in all cases where an individual said that he was a child

A major finding of this Inquiry is that the principle of the benefit of the doubt was not afforded to individuals who said that they were children. For Australian to meet its obligations under the CRC, an individual who says that he or she is a child ought to 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.

It is a finding of this Inquiry that the Commonwealth ordinarily assumed that an individual was either an adult or a child. However, the principle of the benefit of the doubt requires the authorities to recognise that there will be three categories of individuals: those who they can be satisfied are adults; those who they can be satisfied are minors; and those about whose age there is reasonable doubt. It is that last category of individuals who must be given the benefit of the doubt – individuals whose age is in doubt should be treated as children.

The individuals whose experience was considered by this Inquiry, young Indonesians who said that they were children, were not afforded the benefit of the doubt. Instead:

  • They were routinely subjected to a wrist x-ray (in some and possibly all cases without the required consents having been obtained), a biomedical age assessment procedure that was called into question in 2001 and has now been shown to be uninformative of whether an individual has reached 18 years of age.
  • If the wrist x-ray analysis showed that they were skeletally mature, they were charged as an adult and in the vast majority of cases then detained in an adult correctional facility regardless of whether they continued to maintain that they were under 18 years of age.
  • Individuals were charged as adults even when wrist x-ray analysis was inconclusive, directly in contravention of stated Australian Government policy.
  • Individuals were charged and prosecutions continued even when there was other material available that indicated that an individual might be a child, including documentary evidence and the results of DIAC age assessment interviews.

There is a clear understanding that the principle of the benefit of the doubt requires that, if there is a doubt about whether a person who is subject to a criminal proceeding is a child, he or she must be treated as a child. In the context of the young Indonesians suspected of people smuggling this did not occur.

The failure to give individuals who said that they were children the benefit of the doubt was compounded by the fact that wrist x-ray analysis is uninformative of whether an individual has reached 18 years of age.

Until very recently, Commonwealth agencies placed reliance on wrist x-ray analysis as evidence that a person was over the age of 18 years – despite significant material being available to support the conclusion that they should not do so. This reliance meant that:

  • The AFP continued to use wrist x-ray analysis to inform decisions about whether to charge young Indonesians who said that they were children beyond the point in time at which they became aware that serious questions had been raised regarding this method of age assessment.
  • The Office of the CDPP continued to adduce wrist x-ray analysis as evidence of age in legal proceedings beyond the point in time at which they were, or should have been, aware that serious questions had been identified about the reliability of the evidence being adduced from their preferred expert witness.
  • The Office of the CDPP failed to disclose to defence counsel material of which it was aware that undermined the credibility of expert evidence proposed to be adduced by it.
  • Together, the Commonwealth agencies failed to undertake adequate consultation with appropriately qualified experts, including medical experts, regarding the use of wrist x-ray analysis for age assessment purposes. They continued to rely on the opinions of an individual radiologist when faced with expressions of concern by the President of the Royal Australian and New Zealand College of Radiologists and the leadership of a number of other medical colleges whose membership had relevant expertise.
  • AGD did not provide either Attorney-General McClelland or Attorney-General Roxon with even a précis of the scientific material critical of the use of wrist x-rays. While the ‘improved age assessment process’ introduced in July 2011 did provide some alternative methods of age assessment, these were either insufficiently informative of age, or not implemented. At no time does it appear that AGD provided either the former or the current Attorney-General with advice that wrist x-ray analysis was not fit for the purpose of assessing whether an individual is over the age of 18 years.

These failures resulted in the ongoing use of an age assessment procedure that is not informative of whether a person has reached 18 years of age, well past the time that each of these agencies was, or should have been, aware of its limitations. Reliance on skeletal maturity as evidence that a person is over the age of 18 years is likely to result in an incorrect assessment. Each of these agencies was, or ought to have been, aware of this fact from mid-2011 onwards, yet the prosecutions of individuals who had been charged as adults solely or substantially on the basis of wrist x-ray analysis continued.

The consequence of reliance on wrist x-ray analysis for the purposes of age assessment was that a significant number of children were mistakenly assessed to be adults. This error led to further breaches of their human rights.

3 Failure to ensure that the best interests of the child are a primary consideration

The first of these further breaches was the failure to ensure that in all actions concerning them, their best interests were a primary consideration. This human right is central to the CRC and is the human rights principle that is at the heart of this Inquiry. Article 3 of the CRC provides:

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.

Where the young Indonesians were not afforded the benefit of the doubt and mistakenly assessed to be adults, the Commonwealth did not have regard to their best interests as a primary consideration. If their best interests had been regarded as a primary consideration, they would have been treated differently from adults and their other rights as set out in the CRC would have been respected.

Yet, the material before the Commission shows that children, and young Indonesians about whose age there was doubt, were detained for prolonged periods of time in both adult immigration detention facilities and in adult correctional facilities. They were not afforded the special protection and assistance to which a child separated from his parents is entitled. They were not provided with a guardian. All of these subsequent breaches of children’s rights flow from the failure to afford the young Indonesians who said that they were children the benefit of the doubt, and the failure to treat their best interests as a primary consideration in all actions concerning them.

4 Failure to ensure that detention of children is a measure of last resort and for the shortest appropriate period of time

Articles 37(b) and (d) of the CRC state that the detention of children should be a measure of last resort, for the shortest appropriate period of time and promptly reviewable in the courts.

The Commission is satisfied that there have been numerous and repeated breaches of the requirement that children should be detained as a measure of last resort and for the shortest appropriate period of time.

First, there have been many cases where individuals who were clearly children were detained for prolonged periods of time. Individuals who were x-rayed but not charged spent an average of 161 days in immigration detention. This lengthy detention was a result of a significant delay both between the obtaining of a wrist x-ray analysis that found an individual to be skeletally immature and the making of a decision not to prosecute; as well as between the making of a decision not to prosecute and the making of a request to cancel a Criminal Justice Stay Certificate (CJSC). These delays have resulted in the unjustified and prolonged detention of minors.

Second, many young Indonesians suspected of people smuggling spent prolonged periods of pre-charge detention in immigration detention facilities. Individuals who were x-rayed and eventually charged spent an average of 157 days in immigration detention before they were charged. These are unacceptably long periods of pre-charge detention under any circumstance, but particularly in the case of children.

Third, many young Indonesians who ultimately had their prosecutions discontinued spent long periods of time in adult correctional facilities, spending an average of 215 days in such facilities. While the Commission cannot be certain that all of these individuals were in fact children at the time of their apprehension, or during the period of their detention, it appears likely that a significant number of them were. It further appears that, most commonly, prosecutions were discontinued because the prosecution did not believe that it could prove that the person charged was, on the balance of probabilities, over the age of 18 years. Alternatively, the prosecutions were discontinued, from November 2011 onwards, because there was no probative evidence of the age of the person charged other than wrist x-ray analysis.

Fourth, until mid-June 2011 (although the policy change was not announced until November 2011), Commonwealth policy was to oppose bail in all cases in which an individual was charged with people smuggling. A grant of bail does not automatically result in the individual’s release into the community – the few individuals who were granted bail were returned to immigration detention. However, the Commission believes that the principle that children should be detained for the shortest appropriate period of time should ordinarily lead to the placement in community-based accommodation of any accused person whose status as an adult is in doubt and who is granted bail. The prolonged periods of pre-charge detention, in combination with the lack of access to bail for the majority of cases under consideration, also amounts to a breach of article 9(3) of the ICCPR.

The Commission also finds that the detention of many of the young Indonesians has been arbitrary, in breach of article 37(b) of the CRC, and also in breach of article 9(1) of the ICCPR. Detention that is lawful is nonetheless considered arbitrary if it exhibits elements of inappropriateness, injustice or lack of predictability or proportionality. Detention also becomes arbitrary if it is unreasonable or disproportionate to a legitimate aim of the Commonwealth.

The Commission is aware of some cases where individuals were found to be skeletally immature, and thus accepted by the Commonwealth as likely to be children, but were not removed from Australia for some months due to an apparent oversight in requesting the cancellation of a CJSC. In other cases, individuals spent months in immigration detention before a wrist x-ray was taken which, when analysed, suggested that they were under 18 years of age. Only then were they removed from Australia. In the Commission’s view, this amounts to arbitrary detention in breach of article 37(b) of the CRC.

The lengthy periods of pre-charge detention to which the young Indonesians were subject could also constitute arbitrary detention, particularly where consideration was not given to their being held in the least restrictive form of detention; arguably, community detention. Further, the lengthy periods of detention in adult correctional facilities of individuals who said that they were children (as bail was opposed in all cases until mid-June 2011) could also amount to arbitrary detention, in breach of article 37(b) of the CRC.

In addition, individuals suspected of people smuggling who said that they were children at the time of their offence are effectively denied access to judicial review of their detention. A judicial ruling has confirmed the power of the Commonwealth to detain individuals in this circumstance while a CJSC is in place.[1073] This amounts to a breach of article 37(d) of the CRC.

5 Failure to ensure that children deprived of their liberty are separated from adults

The combination of the practice of charging as adults individuals who were assessed to be skeletally mature, and the fact that individuals charged as adults were overwhelmingly detained in adult correctional facilities, led to numerous breaches of article 37(c) of the CRC which requires that a child deprived of his or her liberty shall be separated from adults.

As noted above, at least 48 individuals who had wrist x-rays taken and whose prosecutions were ultimately discontinued were detained in adult correctional facilities. However, the Commission believes that there may be a significantly higher number of individuals who were, at some time, detained in adult correctional facilities while there was at least a strong possibility that they were children. This is because the Commission is aware of cases where individuals, who either maintained that they were less than 18 years of age, or appeared not to have known their age, accepted that they were over 18 years of age once presented with what they understood to be conclusive evidence in the form of a wrist x-ray analysis. The Commission is also aware of cases where individuals’ legal representatives accepted wrist x-ray analysis as determinative and accordingly advised their clients to concede age or to plead guilty. The willingness of defence representatives to accept wrist x-ray analysis as reliable evidence of age may have been attributable, at least in part, to the failure of the Commonwealth to disclose the information it had in its possession that tended to question the accuracy of wrist x-ray analysis as a method of determining age.

Furthermore, in mid-2011, the then Attorney-General was advised to decline a request made by the President of the Commission for a review of cases where substantial reliance had been placed on wrist x-ray analysis. Such a review was not announced until May 2012. The resulting review found that there was doubt about whether some 15 individuals who had been convicted of people smuggling offences were adults at the time they were apprehended. The delay in the calling of this review has contributed to an ongoing breach of article 37(c), as well as a breach of article 37(b) in these specific cases.

6 Failure to ensure respect for the rights of children alleged to have committed an offence

Article 40(2) of the CRC outlines minimum procedural guarantees for children charged with criminal offences, including the right to be presumed innocent until proven guilty, the right to be informed promptly of the charge, the right to legal or other appropriate assistance and the right to have the matter determined without delay.

As noted above, the Commission has found that there have been significant periods of time between apprehension and charge for individuals suspected of people smuggling offences who said that they were children. An average period of time of approximately five and a half months prior to charge almost certainly violates the principle that a matter must be determined without delay, particularly where the individuals were detained during this period. Consequently, the Commission finds that there has been a breach of article 40(2)(b)(iii) of the CRC.

The Commission has not considered in detail the reasons for delays in the prosecution of individuals once they were charged. However, there were significant delays and consequently some people spent long periods of time in adult detention facilities before a decision was ultimately made to discontinue their prosecution.

Young Indonesians suspected of people smuggling were routinely offered access to a lawyer either prior to providing their consent to a wrist x-ray procedure or prior to participating in an AFP investigative interview. For this reason, the Commission does not find that there has been a breach of the requirement to provide legal assistance. However, a large proportion of young Indonesians elected not to speak to a lawyer before speaking to the AFP. This may have been because they were not provided with a guardian and, as a result, did not have an independent adult who could act in their best interests and encourage them to obtain legal advice at the earliest possible stage.

Although many advocates have argued that access to legal advice should be provided prior to participation in a DIAC age assessment interview, the Commission has concluded there will be cases where this is not necessary, for example in the case of an obviously young child who is to be promptly removed to Indonesia. Legal advice, however, should be provided prior to participation in any age assessment interview intended to be relied on in a legal proceeding.

7 Failure to ensure respect for the rights of a child separated from his or her 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 the rights set out under the CRC and other international instruments. Separated children should be provided with special protection and assistance, an important element of which is effective guardianship.

The Commission finds a breach of article 20(1) of the CRC. It is clear that many of the individuals of concern to this Inquiry were either children or entitled to the benefit of the doubt and should have been treated as children. However, they were not provided with special protection and assistance as they were not provided with guardians. In addition, the independent adults who attended these interviews while they were in immigration detention were not informed of the requirement that they act in the interviewee’s best interests and it does not appear that they sought to do so. No independent adult was given the responsibility to ensure that the best interests of these young Indonesians were considered and protected in all decisions concerning them.

The Commission did not receive substantial evidence about, and did not make further inquiry into, issues relating to whether the individuals of concern to this Inquiry were mistreated while they were in adult correctional facilities.

8 Recommendations

Recommendation 1: The Migration Act 1958 (Cth), and if appropriate the Crimes Act 1914 (Cth), should be amended to make clear that for the purposes of Part 2, Division 12, Subdivision A of the Migration Act, an individual who claims to be under the age of 18 years must be deemed to be a minor unless the relevant decision-maker is positively satisfied, or in the case of a judicial decision-maker, satisfied on the balance of probabilities after taking into account the matters identified in s 140(2) of the Evidence Act 1995 (Cth), that the individual is over the age of 18 years.



Recommendation 2: An individual suspected of people smuggling who says that he is a child, and who is not manifestly an adult, should be provided with an independent guardian with responsibility for advocating for the protection of his best interests.



Recommendation 3: No procedure which involves human imaging using radiation should be specified as a prescribed procedure for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth), or remain a prescribed procedure for that purpose, without a justification of the procedure being undertaken in accordance with the requirements of paragraphs 3.18, 3.61–3.64 and 3.66 of the International Atomic Energy Agency Safety Standard: Radiation Protection and Safety of Radiation Sources: International Basic Safety Standards – Interim Edition (General Safety Requirements: Part 3) or any later edition of these requirements. Such justification should take into account contemporary understanding of the extent to which the procedure is informative of chronological age.



Recommendation 4: The Crimes Act 1914 (Cth) and, if appropriate, the Crimes Regulations 1990 (Cth), or alternatively the Evidence Act 1995 (Cth), should be amended to ensure that expert evidence which is wholly or substantially based on the analysis of a wrist x-ray is not admissible in a legal proceeding as proof, or as evidence tending to prove, that the subject of the wrist x-ray is over the age of 18 years.



Recommendation 5: Imaging of an individual’s dentition using radiation (dental x-ray) should not be specified for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth) as a prescribed procedure for the determination of age



Recommendation 6: Imaging of an individual’s clavicle using radiation (clavicle x-ray) should not be specified for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth) as a prescribed procedure for the determination of age.



Recommendation 7: If any forensic procedure is specified as a prescribed procedure for the purpose of age determination within the meaning of s 3ZQA(2) of the Crimes Act 1914 (Cth), Part IAA Division 4A consideration should be given to amending the Crimes Act to provide that such a procedure may only be undertaken in the circumstances in which a forensic procedure within the meaning of s 23WA of the Crimes Act may be undertaken with respect to a child.



Recommendation 8: Unless and until recommendation 9 is implemented, the Commissioner of Federal Police should ensure that all Federal Agents are aware of their obligations when acting as an ‘investigating official’ in reliance on s 3ZQC of the Crimes Act 1914 (Cth) and should further ensure that protocols or guidelines are put in place to ensure that these obligations are met. Specifically, an investigating official should be aware that the role of any independent adult person is to represent the interests of the person in respect of whom the prescribed procedure is to be carried out and that he or she should be so advised.



Recommendation 9: Where it is necessary for an investigating official within the meaning of s 3ZQB(1) of the Crimes Act 1914 (Cth), who suspects that a person may have committed a Commonwealth offence, to determine whether a person is, or was at the time of the alleged commission of an offence, under the age of 18 years, the investigating official should seek the consent of the person to participate in an age assessment interview.



Where reasonably possible, the interviewer should speak the language ordinarily spoken by the person whose age is to be assessed and should be familiar with the culture of the place from which the person comes. The interviewer, who ideally should be independent of the Commonwealth, should be instructed that he or she should only make an assessment that the person is over the age of 18 years if positively satisfied that this is the case after allowing for the difficulty of assessing age by interview.



All interviewers should be trained, should follow an established procedure and should record their interviews. Their conclusions and the reasons for their conclusions should be documented.



Recommendation 10: Any individual suspected of people smuggling who says that he is a child and who is not manifestly an adult should be offered access to legal advice prior to participating in any age assessment interview intended to be relied on in a legal proceeding.



Recommendation 11: If a decision is made to investigate or prosecute an individual suspected of people smuggling who does not admit that he was over the age of 18 years at the date of the offence of which he is suspected, immediate efforts should be made to obtain documentary evidence of age from his country of origin.



Recommendation 12: The Attorney-General should set and ensure the implementation of an appropriate time limit between the apprehension of a young person suspected of people smuggling who does not admit to being over the age of 18 years and the bringing of a charge or charges against him. The Attorney-General should further consult with the Commonwealth Director of Public Prosecutions concerning procedures put in place by the Director to ensure the expeditious trial of any young person who does not admit to being over the age of 18 years and who is charged with a Commonwealth offence. Should the Attorney-General not be satisfied that appropriate procedures have been put in place by the Director, the Attorney-General should issue guidelines on this topic under s 8 of the Director of Public Prosecutions Act 1983 (Cth).



Recommendation 13: The Commonwealth should only in exceptional circumstances, and after bringing those circumstances to the attention of the decision-maker, oppose bail where a person who claims to be a minor, and is not manifestly an adult, has been charged with people smuggling. Where a person who claims to be a minor, and is not manifestly an adult, has been charged with people smuggling and granted bail, he should be held in appropriate community detention in the vicinity of his trial court. The Minister for Immigration and Citizenship’s guidelines for the administration of his residence determination powers should be amended so that such cases can be brought to the Minister’s immediate attention.

Recommendation 14: The Attorney-General should consult with the Commonwealth Director of Public Prosecutions concerning procedures put in place by the Director to ensure that the Commonwealth does not adduce expert evidence in legal proceedings where the acceptance by the court of that evidence would be inconsistent with the accused person’s receiving a fair trial. Should the Attorney-General not be satisfied that appropriate procedures have been put in place by the Director, the Attorney-General should seek advice from an appropriately qualified judicial officer or former judicial officer as to the terms of guidelines on this topic that it would be appropriate for her to furnish to the Director under s 8 of the Director of Public Prosecutions Act 1983 (Cth).

Recommendation 15: The Attorney-General’s Department should establish and maintain a process whereby there is regular and frequent review of the continuing need for each Criminal Justice Stay Certificate given by the Attorney-General or his or her delegate. The Attorney-General’s Department should additionally ensure that a Criminal Justice Stay Certificate is cancelled as promptly as compliance with s 162(2) of the Migration Act 1958 (Cth) allows when it is no longer required for the purpose for which it was given.

Recommendation 16: If, at any time, the Commonwealth becomes aware of information that indicates that an individual suspected of people smuggling whose age is in doubt may have been trafficked, he should be treated as a victim of crime and provided with appropriate support.

Recommendation 17: The Australian Government should remove Australia’s reservation to article 37(c) of the Convention on the Rights of the Child.

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[1073] [BAI031] v Minister for Immigration & Citizenship [2011] NTSC 45.