5 Focused age assessment interviews

An age of uncertainty

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

 

Chapter 5: Focused age assessment interviews

1 Introduction

Focused age assessment interviews can be a useful technique for assessing age. Interviews of this kind have been used in Australia in a range of different ways since late 2010.

In late 2010, both the Department of Immigration and Citizenship (DIAC) and the Australian Federal Police (AFP) conducted focused age interviews for the purposes of assessing the ages of young Indonesians suspected of people smuggling. It appears that no further interviews of this kind were conducted until late in 2011, although, in mid-2011, the Government announced that the AFP would again offer voluntary focused age interviews, this time to be conducted under caution. For a number of reasons, the AFP did not offer these interviews.

In late 2011, a new age assessment procedure was introduced whereby DIAC conducted focused age interviews with individuals suspected of people smuggling whose age was in doubt, and only referred to the AFP those who they believed likely to be adults.

The Commission recognises that focused age interviews have some limitations that may affect their reliability and credibility as evidence of age. For that reason, focused age interviews must be conducted with care and must afford a wide margin of benefit of the doubt to any individual interviewed whose age is in doubt. It appears that the DIAC focused age assessment interview process generally meets these criteria.

From the material before the Commission it appears that the results of focused age interviews conducted with young Indonesians by DIAC in 2010 were largely disregarded by the AFP, with the consequence that many individuals assessed to be minors by DIAC were charged as adults and spent long periods of time in immigration detention and adult correctional facilities. In the vast majority of these cases, the prosecutions were ultimately discontinued.

This chapter of the report discusses:

• the benefits and limitations of conducting focused age assessment interviews
• the Commonwealth’s approach to conducting focused age assessment interviews
• concerns about the Commonwealth’s approach to focused age assessment interviews
• disclosure of DIAC age assessment interviews to the defence
• outcomes of DIAC age assessment interviews conducted since December 2011.

2 The benefits and limitations of conducting focused age assessment interviews

A focused age assessment interview can be a useful source of information about the interviewee’s age, especially in circumstances where documentary evidence of age is unavailable. Such an interview involves trained interviewers asking a person whose age is in doubt a series of questions about his or her life in order to establish a chronology so as to make an assessment of the likelihood of the person being a child.

Interviews of this kind offer an important opportunity to hear directly from individuals who say that they are children. The Victoria Legal Aid submission to the Inquiry notes the importance of listening to the experience of people who say that they are children in the context of child asylum-seekers. The submission states:

Given the importance of age in determining whether young refugees can reunite with their families, and the difficulties in relying on either written records or x-ray data, it will often be appropriate to treat the evidence of a young refugee as the primary source of evidence about their age. Where there is other credible evidence as to age, this will also need to be taken into account. In the absence of such evidence, the young person’s testimony should be treated as sufficient evidence of age, so that such vulnerable child refugees can seek to be reunited with their family in Australia.^[745]

Focused age assessment interviews are widely used in other countries as one of a variety of techniques for determining age. However, they are generally used in the context of unaccompanied minors in the immigration system as distinct from in a criminal justice context.^[746] In his submission to the Inquiry, Professor Sir Al Aynsley-Green, former Children’s Commissioner for England, notes that focused age assessment interviews are used universally.^[747] However, he observes some challenges to achieving reliable results from focused age assessment interviews. According to Professor Aynsley-Green, research demonstrates that interview results can be affected by the ‘often intimidating’ environment in which they occur and that the quality of interpreters who are present is key.^[748] He also noted that there can be challenges in the analysis of the material provided during the interview. He observed:

Analysis of the narrative given by the subject is fundamentally important. To be performed properly, however, this demands time, often involving several separate interviews, and expertise in the interviewers in understanding the lives, education and culture of children in the countries from which they have come.^[749]

It is apparent that focused age interviews have limitations which may affect their reliability and credibility as evidence of age. These include potential problems with interpretation, and the risk that the interviewer has an inadequate understanding of the social and cultural circumstances of the interviewee.

The submission to the Inquiry from the Australian Children’s Commissioners and Guardians notes the importance of those conducting or relying on focused age assessment interviews being aware that the experience of childhood varies across cultures. They said:

It is crucial that any interviews (such as the focused age interviews conducted by the AFP) to assess the age of an individual are undertaken with regard to the cultural context of childhood in the individual’s country of origin so that any differences in typical experiences compared to an Australian child can be taken into consideration.^[750]

Other submissions to the Inquiry raise questions about the reliability of age assessment interviews. For example, the Northern Territory Legal Aid Commission argues that:

They are very subjective, both in requiring the interviewee to be able to provide an accurate history and in the opinion forming by the interviewer. There is significant scope for incorrect results where individuals with limited education fail to provide an accurate history. There is also the risk of misunderstandings due to language and cultural barriers, as despite the provision of interpreters, many people speak dialect and have limited education.^[751]

Legal Aid NSW emphasises the impact of the use of inappropriate interpreters in interview processes especially as many of the individuals being interviewed speak regional dialects and may not be fluent in Bahasa Indonesia, the official language of Indonesia.^[752]

Importantly, the UNHCR Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum conclude that age focused interviews must be age-appropriate and culturally sensitive.^[753]

In order to mitigate the limitations of focused age interviews, Professor Aynsley-Green recommends that in documenting an individual’s narrative there should be a written protocol and checklists of the data needed for the record and that effective and consistent training must be given to those performing interviews.^[754] In addition, he argues, an impartial approach by the interviewer needs to be adopted, so as to avoid the influence of any culture of disbelief.

Although there may be a degree of imprecision associated with eliciting narrative evidence through interview, international experience suggests that, if such interviews are conducted in a consciously age-appropriate and culturally sensitive manner, issues concerning reliability can be mitigated. Nonetheless, conclusions drawn from focused age interviews should factor in a wide margin of error to account for the inevitable imprecision.

3 The Commonwealth’s approach to conducting focused age assessment interviews

As noted above, age assessment interviews with young Indonesians suspected of people smuggling offences have been conducted periodically in Australia since late 2010.

Prior to December 2011, focused age interviews were only conducted during two periods of time, both in late 2010, when:

• DIAC conducted a trial of age assessment interviews with 27 individuals suspected of people smuggling offences
• the AFP conducted age assessment interviews with 12 individuals suspected of people smuggling offences.

Although the Australian Government announced on 8 July 2011 that the ‘improved age assessment process’ would include focused age assessment interviews conducted under caution by the AFP, no such interviews have been conducted by the AFP since that date.^[755]

The current approach to age assessment interviews by DIAC commenced in December 2011. The current practice where the age of a young Indonesian suspected of people smuggling is in doubt is for DIAC officers to conduct an age assessment interview and only refer the individual to the AFP for investigation where they have found that he was likely to have been an adult at the time of his alleged offence.

The different approaches to age assessment interviews of DIAC and the AFP will be discussed below.

3.1 DIAC conduct a trial of focused age interviews in 2010

DIAC’s approach to focused age assessment interviews with individuals whose ages were in doubt was developed in the context of asylum seekers who said that they were minors. In mid-2010 DIAC found that an increasing number of irregular maritime arrivals were saying that they were minors when DIAC officers believed that they may have been adults.

In response, DIAC developed a focused age assessment interview process where clients were interviewed by two experienced and trained DIAC officers in the presence of an independent observer engaged by DIAC.

The primary purpose of the DIAC age assessment interviews is to make an appropriate detention placement and to comply with Australian Government policy that minors will not be detained in immigration detention centres but rather in alternative places of detention or in community detention.^[756] DIAC has made clear to the Commission that it ‘did not develop its age assessment process for the purpose of criminal justice administration and has not ever purported to carry it out to the standard that might be required in that context’.^[757]

In correspondence with the Inquiry, DIAC describes the process as follows:

The approach [used] ... is through interviewing, asking a series of questions, not necessarily one after the other but interspersed, which go to chronology around schooling, ages of siblings, birth dates, when certain events occurred and so on. Any chronological inconsistencies which emerge are put to the client. Interviewers have access to, and considered, other documentation before conducting these interviews e.g. records of entry interview, any identity documents and/or records of discussions with DIAC staff in relation to their change of date of birth claims.^[758]

DIAC also informed the Commission that officers take a ‘low-key, commonsense approach to the interview recognising that the client may in fact be a minor’, and that ‘the interviewer ensures that information taken into account in forming that view is put to the client for comment’ and this occurs ‘before coming to a view about whether the client is a minor or adult’.^[759]

The areas of inquiry covered during a DIAC focused age assessment interview include: physical appearance and demeanour; behaviour; family history; education and employment; and social history and independence.^[760]

If the two interviewers come to different conclusions about an individual’s age following an interview, the principle of the benefit of the doubt applies. DIAC has advised:

The interview assessment is conducted by two experienced officers who each separately form their own view and only share that view towards the end of the process. When their views concur on the basis of relevant, available information, this forms the official DIAC view of whether the person is a minor or an adult. Where they differ the person is given the benefit of the doubt and continues to be treated as a minor.^[761]

3.2 DIAC age assessment interviews were conducted with 27 individuals in October 2010

Documents provided to the Commission indicate that, at a meeting on 3 September 2010, DIAC and the AFP agreed that ‘DIAC would assist the AFP in age determination of a group of minors [suspected of people smuggling] whose age had been determined to be over 18 on the basis of a wrist x-ray alone’.^[762] This group consisted of 32 young Indonesians who were in immigration detention and four who were at that time before the courts.^[763] It appears that the AFP agreed that, if DIAC determined that any member of this group was a minor, the AFP would drop charges and DIAC would arrange for the individual to return to Indonesia.^[764]

Ultimately, DIAC age assessment interviews were conducted with 27 crew members either on Christmas Island or in Darwin. Documents provided to the Commission show that the result of these age assessment interviews were that one individual was found to be likely to be over 18, three individuals were considered to be borderline, and the remaining 23 individuals were found to be likely to be under 18.^[765] The outcome of the assessment is described by a senior DIAC officer in an email to the AFP:

Of this group, we have assessed one client as being over 18 (and are currently giving him the opportunity to comment on that finding). The others were either borderline (but for our purposes we will continue to treat them as minors) or we are satisfied they are minors.^[766]

From the documents before the Commission, it appears that most of the individuals who were assessed by DIAC as likely to be under the age of 18 were nevertheless charged as adults and spent long periods of time in detention before having the prosecution against them discontinued and being removed to Indonesia. The outcomes of these interviews are discussed further in section 4.1 below.

3.3 AFP age assessment interviews were conducted with 12 individuals in November 2010

Focussed age interviews have never been adopted by the AFP as standard operating practice.^[767] However, in November 2010 the AFP conducted a number of focused age interviews. In correspondence with the Commission the AFP described the genesis of these interviews in the following way:

In November 2010, due to a large number of crew in detention on Christmas Island, the AFP decided to approach crew outside the formal interview process in an endeavour to ascertain their approximate age. These discussions were voluntary in nature and not conducted under Part 1C of the Crimes Act 1914. Following the initial conversations with the crew, the AFP made decisions on whether to proceed further with the investigational process or refer individuals back to DIAC for deportation.^[768]

It appears that 12 individuals suspected of people smuggling offences participated in these interviews. The AFP reported at the time that: ‘[t]hese conversations were not recorded and the clients were advised that they were for intelligence purposes only’.^[769] An AFP officer describes how the interviews were conducted:

General questions were asked and more specific ones targeted ... [at] gaining a greater understanding of their true age, level of intelligence and role on the boat. They included:

• • Where were you when President Suharto stepped down?
  • What were you doing at this time?
  • How old were you then?
  • Do you remember the Ambon riots and did this affect your family?^[770]

In its response to the draft report, the AFP reported that the ‘purpose of the interviews was to provide assessments on the likelihood of the interviewee being a juvenile and to reduce the time in detention of suspected people smuggling crew’. The response also noted that ‘the development of the interview questions was informed through discussions with a qualified Indonesian interpreter with knowledge of Indonesia’.^[771]

Although these questions are focused on events in Indonesia, they may not have been appropriate for this group of individuals. First, Ambon is some distance from the area from which many crew members originate. Second, many of these individuals have limited education and are from impoverished areas with poor infrastructure and limited telecommunications. It cannot be assumed that they would know when President Suharto stepped down.

Documents provided to the Commission contain information about the outcome of these interviews. Of the 12 individuals interviewed, the AFP came to the conclusion that two were definitely minors and that they should be returned to Indonesia, and that ten others ‘will need wrist x-rays’.^[772]

The AFP has informed the Inquiry that no further interviews of this type were conducted by the AFP after November 2010. They explained:

Given that age is a significant proof of the offence, the AFP considers that age determination questions should be conducted in accordance with Part 1C [of the Crimes Act 1914] to form part of the admissible brief of evidence available to the court.^[773]

The development of a focused age interview process that met the requirements of the Crimes Act was considered further in the development of the ‘improved age assessment process’ that was announced in July 2011.

3.4 In January 2011, DIAC was asked to stop conducting age assessment interviews with individuals suspected of people smuggling

It is clear from documents provided to the Commission that there was concern within the AFP and the Office of the CDPP about the impact on the prosecution of people smuggling offences where a DIAC focused age assessment interview came to a different conclusion about an individual’s age from that expressed in a wrist x-ray report.

This concern is evident in email correspondence between the AFP and Office of the CDPP in November 2010 in which it is stated:

Now that we have a DIAC report that from my perspective the reliability of it is questionable as to its conclusions, it appears this is now jeopardising prosecutions. ... The outcomes now potentially mean that any test of 19 (any adult) through the x-ray process the prosecution can be crippled by the DIAC pilot assessment that has little academic rigour or foundation for the conclusions made.^[774]

In December 2010, the Office of the CDPP conducted an analysis of the DIAC age assessment interview process and concluded that the current DIAC age assessment process and report presents significant problems for prosecuting authorities. These include that:

• interviews are not conducted under caution
• DIAC officers are not investigating officials for the purposes of the Crimes Act 1914
• DIAC age assessment reports would need to be disclosed to defence counsel;
• CDPP would likely challenge the qualifications and expertise of the age assessment officer, the methodology used, the criteria of age determination, the statements of the accused person, and the scientific basis of the questions if relied upon by defence counsel.^[775]

In late January 2011, the Attorney-General’s Department (AGD) and the Office of the Commonwealth Director of Public Prosecutions (Office of the CDPP) asked DIAC to stop conducting age determination interviews with crew. On 27 January 2011, the Office of the CDPP hosted a meeting with AGD and DIAC to discuss age determination of crew in people smuggling prosecutions. At that meeting, DIAC was requested not to undertake any age assessments of crew, as a ‘highly undesirable situation of DIAC being called by the defence to counter the prosecution’s wrist x-ray based evidence’ was foreseen.^[776]

An internal DIAC email discussing a specific case (in which, in fact, a DIAC focused age assessment interview had not been conducted), outlines an understanding of the reasons for DIAC being requested to stop conducting age focused interviews in the following way:

The CDPP and AGD are very concerned to avoid this situation, where an age determination is undertaken by the AFP using one method and a separate and different process is used by DIAC, with different conclusions reached. Two specific issues arose ... they expect the DIAC age assessment report (which they believe signals he is a minor) will be disclosable to the defence, conscious that it does not support the AFP’s (wrist xray method) evidence that he is aged 19. ... [T]hey want DIAC to not undertake any age assessments of crew, foreseeing a highly undesirable situation of DIAC being called by the defence to counter the prosecution’s wrist x-ray based evidence, particularly after the disclosure of the contradictory DIAC report.^[777]

It is important to note that DIAC age assessment processes have continued at all times for unaccompanied asylum seekers who say that they are children, irrespective of whether they were being done for Indonesian crew.^[778]

3.5 The July 2011 improved age assessment process is to include focused age interviews

As described in Chapter 3, on 8 July 2011, the then Attorney-General and the then Minister for Home Affairs and Justice announced an ‘improved process for age determination in people smuggling matters’^[779] that was to include focused age interviews conducted by the AFP under caution.^[780]

At the time of the announcement, the then Attorney-General informed the Commission that:

The AFP will commence offering focused age interviews where age is in dispute as part of the ordinary interview of irregular maritime arrivals suspected of committing people smuggling offences. Focused interviews will occur under caution and will be conducted by AFP officers.^[781]

The then Attorney-General went on to note:

The AFP is seeking to engage an external consultant with appropriate anthropological, cultural and linguistic expertise to develop guidance material for investigators conducting focussed age interviews. It is anticipated that this guidance material would set out relevant lines of questioning for interviewers to put to Indonesian nationals.^[782]

However, within a month of the announcement, it became clear that it would not be possible to develop a set of generic questions that could be asked of a young person from Indonesia whose age was in doubt. On 3 August 2011, the AFP met an anthropologist with expertise in Indonesian culture to discuss the viability of developing focused age assessment interviews that could be used for criminal justice purposes.^[783] The AFP reported on this discussion at a meeting of Commonwealth agencies held on 12 August 2011. A note of the meeting records that:

it has met with anthropologist [name redacted] to discuss the development of questions for interviewing people smuggling crew on age issues. [Name redacted] highlighted that it would not be possible to develop a set of generic questions for age determination.^[784]

The AFP explained to the Commission its understanding of the reasons why the expert came to this view in the following way:

Firstly, the sheer diversity of Indonesian language and culture due to the geography of the nation (a situation exacerbated by the inherent difficulty in establishing the identity and therefore origin of the interviewee in question). This diversity means that questions would need to be tailored specifically to ports or villages of origin to have any chance of being useful to the investigator in determining the age of the interviewee. This diversity raises additional difficulties, not least being the fact that the maritime workforce in Indonesia has a high degree of mobility between regions of Indonesia as a result of the seasonal nature of maritime work.

Secondly, the significant lack of participation in formal schooling amongst a large proportion of Indonesian males, particularly those from families involved in maritime life, such as fishing and coastal shipping. This fact results in problems such as eliminating a key source of material which could be used to help determine an interviewee’s age (ie. How long were you at school for?) in addition to the obvious difficulties associated with interviewing an uneducated person.^[785]

Based on this advice, and the opinion of the Office of the CDPP, the AFP has not relied on age assessment interviews for evidentiary purposes.^[786]

According to the Joint Commonwealth submission to the Inquiry, rather than conduct specific age assessment interviews, the AFP includes questions that go to age in interviews conducted for investigative purposes. The submission states:

The AFP offers anyone suspected of committing a Commonwealth offence an opportunity to participate in an interview as part of the normal course of an investigation. The AFP asks questions about age as an ordinary part of this interview in cases where age is in dispute, including about the person’s background, education, family and work experience among other things. Interviews with the AFP are conducted in accordance with Part 1C of the Crimes Act, which imposes obligations on investigating officials that protect the rights of people under arrest.^[787]

The Joint Commonwealth submission also notes that:

To comply with the requirements of Part 1C, participation in an interview with the AFP is voluntary and people smuggling crew cannot be compelled. Accordingly, the use of interviews with the AFP for age determination purposes is limited to circumstances where the crew member consents. Typically, crew decline to be interviewed as it is voluntary under Part 1C.^[788]

The Commission understands that it is for the reasons noted above that the AFP has not conducted any focused age interviews under caution notwithstanding that they constituted an element of the ‘improved age assessment process’ announced in July 2011.

3.6 DIAC commenced conducting focused age interviews with all crew whose age is in doubt from December 2011

In late 2011, the Commonwealth agencies involved in issues of age assessment in the context of people smuggling agreed that a new process would commence whereby DIAC would conduct focused age assessment interviews with all individuals whose age is in doubt, and it would only refer to the AFP those individuals who it found were likely to be adults. It is important to again note that DIAC has at all times since 2010 conducted age assessment interviews for unaccompanied asylum seekers who say that they are children.^[789]

The Joint Commonwealth submission describes this new process as follows:

Shortly after arrival at Christmas Island, DIAC conducts an age assessment of all crew claiming to be minors. DIAC assesses the age of the person based on any documents available at the time of the assessment and a focused age interview. If a crew member is assessed by DIAC to be an adult they are referred to the AFP for consideration of criminal investigation and for age determination processes to be conducted. ... Crew assessed by DIAC to be minors are removed to their country of origin unless exceptional circumstances apply.^[790]

The Commission has been informed that this process commenced on 21 December 2011.^[791] The outcomes of DIAC focused age assessment interviews conducted since December 2011 are discussed further in section 4.1 below.

4 Concerns about the Commonwealth’s approach to focused age assessment interviews

The documents before the Commission suggest that there are a number of issues of concern with the way the Commonwealth has approached focused interviews as a method of assessing the age of young Indonesians whose age is in doubt. These include that:

• the results of DIAC focused age assessment interviews conducted in October 2010 were largely disregarded by the AFP
• the AFP age assessment interviews conducted in November 2010 did not produce reliable information about age
• legal advice is not provided prior to the conduct of DIAC age assessment interviews.

4.1 The results of the DIAC age assessment interviews conducted in October 2010 were largely disregarded by the AFP

It appears that the results of the October 2010 DIAC age assessment interviews were largely disregarded by the AFP.

As noted above, the results of these age assessment interviews were that one individual was found to be likely to be over 18 years of age, three individuals were considered to be borderline, and the remaining 23 individuals were found to be likely to be less than 18 years of age.

The Commission acknowledges that eight individuals who participated in this trial were ultimately found to be less than 18 years of age and removed from Australia without being charged. However, the AFP had given an undertaking that they would not charge any individual assessed by DIAC to be less than 18 years of age and would rather request his removal to Indonesia.^[792] It appears that the AFP did not remove those individuals to Indonesia until a wrist x-ray had also been conducted.

All of the 27 young Indonesians who participated in focused age assessment interviews ultimately had wrist x-rays conducted. Documents provided to the Commission indicate that 15 of these x-rays were taken after the DIAC focused age assessment interviews had been completed. In 12 of these 15 cases a wrist x-ray was taken even though the DIAC focused age assessment interview had already concluded that the individual was likely to be a minor.

Concern about the practice of conducting a wrist x-ray for an individual who was interviewed by DIAC and found likely to be a minor is expressed by the solicitor Mr Anthony Sheldon in his submission to the Inquiry:

A client “L” was interviewed when he was processed after his arrest. A Department of Immigration and Citizenship (DIAC) officer conducted this interview. The officer’s title was “Age Assessment Interview Officer”. This officer reported that L was in his assessment, a minor. Following this assessment a wrist x-ray was ordered which, when examined by a Radiologist suggested that statistically, L was over 18. ...

The assessment of the Age Assessment Interview Officer was not, in L’s case sufficient to show L was a minor. The view of the Commonwealth Department of Public Prosecutions (CDPP) in that case was that the x-ray was evidence indicating that L was an adult. No attempt to verify L’s age from Indonesian records, or relatives was made in over 12 months. During this period of detention D was held with adult offenders on remand.^[793]

The outcomes of the 27 cases in which DIAC focused age assessment interviews were conducted in October 2010 can be summarised as follows:

• Assessed by DIAC to be likely to be over 18 (one individual):
  • Charged as an adult and ultimately found likely to be a minor following an age determination decision delivered on 25 October 2011 in the District Court of Western Australia.^[794]
• Assessed by DIAC to be borderline (three individuals):
  • Two individuals were charged as adults and ultimately had their prosecutions discontinued in October 2011.
  • One individual was charged as an adult and found likely to be an adult in an age determination decision delivered on 25 October 2011 in the District Court of Western Australia in R v Daud.^[795]
• Assessed by DIAC to be likely to be under 18 (23 individuals):
  • Eight individuals were assessed by the AFP to be under 18 following wrist x-ray analysis and were not charged and removed from Australia.
  • Twelve were assessed by the AFP to be 19 years or older following wrist x-ray analysis and were charged as adults, with all of these prosecutions ultimately discontinued (in most of these cases, prosecutions were not discontinued until the second half of 2011).
  • Three individuals had a wrist x-ray that was not conclusive, with reports saying that the individuals had either ‘just reached skeletal maturity’;^[796] that they were over 18 but that their bones had ‘not yet fully fused’;^[797] or that they were ‘between 18-19’.^[798] In each of these cases the individual was charged as an adult and the prosecution was ultimately discontinued.

It appears that, in cases where the wrist x-ray analysis found skeletal maturity, the AFP relied on the wrist x-ray to charge the individual as an adult notwithstanding the earlier DIAC age assessment had concluded that the individual was a minor. While all of these prosecutions were ultimately discontinued, these individuals spent a considerable length of time in detention. Issues relating to the length of time young Indonesians spent in detention are discussed further in Chapter 7.

It is of concern that in at least three cases, an individual was charged as an adult even where the wrist x-ray analysis was inconclusive and a DIAC age assessment interview had found that the individual was likely to be less than 18 years of age. In one of these cases, DIAC urgently communicated their concerns to the AFP that DUR041, who was going to be charged as an adult, had recently been assessed as a minor in a DIAC focused age assessment interview. A DIAC officer advised the AFP:

The view of my team is that, whilst the client is unlikely to be 11 years old as he claims, they do not consider he is over 18 (but more likely around 14 or 15 years of age).^[799]

DUR041 was charged by the AFP the day after his DIAC focused age assessment interview found that he was likely to be less than 18 years of age. He was charged as an adult on the basis of the wrist x-ray even though the analysis of his wrist x-ray was not conclusive.^[800] Ultimately the CDPP discontinued his prosecution over a month later.^[801] DUR041 spent 245 days in detention in Australia, 57 of them in an adult correctional facility.

Of the eight individuals who were assessed by the AFP to be less than 18 years of age, two were also assessed as likely to be less than 18 years of age by both DIAC focused age assessment interviews and following wrist x-ray analysis. In both cases, an AFP file note records a decision not to prosecute based on the wrist x-ray analysis approximately five and six months respectively before the DIAC focused age assessment interviews for these individuals were even held.^[802] It is of concern that the AFP had information that these two individuals were likely to be minors, and had recorded a decision not to prosecute, many months before taking action to return them to Indonesia.^[803]

4.2 The AFP age assessment interviews conducted in November 2010 did not produce reliable information about age

As discussed above, the AFP focused age assessment interviews conducted in November 2010 were premised on questions that may not have provided reliable information about a person’s age.

As noted above, ten of the 12 individuals who participated in these interviews were assessed by the AFP as likely to be adults.

The Commission only has documentary records for ten of the individuals who participated in the AFP interviews (two of these ten were assessed as likely to be minors, eight of the ten were assessed as likely to be adults).

It appears that the two individuals who were assessed to be minors were not x-rayed and were returned to Indonesia. However, it is concerning that they were not returned until approximately two and three months respectively after the AFP interviews were conducted. In one of these cases, it appears that the AFP did not act on the decision not to pursue prosecution. It was discovered during a review of CJSCs conducted in early 2011 that he remained in detention more than two months after this decision was made.^[804]

A third individual was assessed as being less than 18 years of age following a wrist x-ray, despite the assessment of the AFP interviewer that the answers given to questions ‘would make him about 27 years [old] – definitely over 18’.^[805]

Another four of the ten individuals, who were all assessed by the AFP to be adults, also participated in the October 2010 DIAC focused age assessment interviews described above. DIAC assessed all four to be minors. All four were arrested and charged, and all four ultimately had their prosecutions discontinued.^[806]

Of the three remaining cases for which the Commission has records, two prosecutions were ultimately discontinued, while one remains before the courts at the time of writing.^[807]

It is clear from the results of these interviews that they did not provide reliable information about age. This is evident from the different outcomes of the AFP focused age interviews when compared with the results of the DIAC interviews. It is also apparent from the fact that, of the eight matters for which the Commission has records where individuals were found likely to be adults by the AFP, seven prosecutions were later discontinued. In most cases it appears that the prosecution was discontinued because the Commonwealth was not satisfied that the individual would be found by a court on the balance of probabilities to be over the age of 18 and the prosecution of a minor was not justified in the circumstances. While a matter being discontinued is not of itself an indication that the individual is definitely a minor, it is clear that there is a significant inconsistency between the assessments of age made by the AFP and the eventual outcome of the cases.

4.3 Legal advice is not provided prior to the conduct of DIAC age assessment interviews

Submissions to the Inquiry have expressed concern that legal advice is not provided to individuals prior to their participating in a DIAC focused age assessment interview. For example, Legal Aid Queensland observes that ‘there is no obligation for the [migration] officer to caution the individual of concern about answering questions’. The submission goes on to say:

The answers that are provided in the course of these interviews may have a direct impact on whether the individual is later charged with a criminal offence. To ensure that the rights of an individual of concern are protected, it is essential that they receive full advice in relation to the legal consequences of answering age related questions.^[808]

Other submissions to the Inquiry raised similar concerns, including those of the Northern Territory Legal Aid Commission and Legal Aid NSW.^[809]

5 Disclosure of DIAC age assessment interviews to the defence

Issues also arose between agencies regarding the disclosure of the DIAC focused age assessment interviews. It is important to note that, although the age assessment interviews were conducted in October 2010, and a spreadsheet summary of results was provided to the AFP soon after this time, the actual reports on the interviews were not completed by DIAC until February 2011.

At a meeting on 4 November 2010 attended by officers of AGD, the Office of the CDPP, DIAC and the AFP, the Office of the CDPP advised that, notwithstanding the difficulties they had with DIAC age assessment documents and the methods used by DIAC to assess age, the Commonwealth had an obligation to disclose any such documents.^[810]

In December 2010, the Office of the CDPP again acknowledged that the record of a DIAC age assessment interview should be provided by DIAC to the prosecution so that consideration could be given as to whether they should be disclosed to the defence.^[811] However, the Office of the CDPP also considered that, if the defence were to tender a DIAC focused age assessment interview as evidence, the Office of the CDPP would challenge the contents of that report. In particular, the CDPP would challenge:

• the qualifications and expertise of the Age Assessment Officer;
• the methodology used by the Age Assessment Officer;
• the criteria of age determination in each category;
• the self-serving statements of the accused person in answering the questions put;
• the scientific, including social science, basis of the questions; and
• the appropriateness of the methodology when compared with other known and provable scientific methodology (including the prescribed wrist x-ray procedure).^[812]

Material before the Commission indicates that, following the letter from the President of the Commission to the then Attorney-General dated 14 February 2011 which raised the issue of disclosure, the agencies involved agreed that DIAC focused age assessment interviews should be disclosed to the defence and that they were in fact disclosed in some cases.^[813]

On 3 March 2011, the Office of the CDPP wrote to the AFP requesting that the AFP ensure that DIAC focused age assessment interviews were disclosed to the defence in all cases. The letter reports that, at that time, only one of the cases in which a DIAC focused age assessment interview had been conducted had reached the prosecution stage and that this case had been discontinued prior to the DIAC report being disclosed.^[814]

Submissions to the Inquiry have raised concerns about whether DIAC focused age assessment interviews have been disclosed to the defence in a timely manner in every case. For example, the Northern Territory Legal Aid Commission reported that:

In one case the interview was disclosed to NTLAC very late, after the individual had been in custody for a long period of time and the matter had been listed for trial. The interview indicated that the defendant may well be younger than 18.

Ultimately in this case the prosecution filed a nolle prosequi, however this did not occur until 16 months after apprehension and a few weeks before the trial was listed to commence. No explanation was given as to the change in prosecution view, nor are we aware of any new evidence being received or provided to the prosecution to explain the decision. Early disclosure of this material may have assisted in submissions to have the charge withdrawn at an earlier stage.^[815]

While the Office of the CDPP agreed that the DIAC age assessment interviews should be disclosed to the defence in age determination matters, the Office of the CDPP proposed, for the following reasons, that the prosecution should lead them in evidence:

The reasons are that the test is on the balance of probabilities and the courts in such matters do tend to allow hearsay evidence; for example evidence from the accused as to what he was told by his parents as to his date of birth. Also this approach would allow the proceedings to be dealt with at one time rather than being adjourned for the defence to summons DIAC. As the evidence is DIAC evidence and thus part of the Commonwealth it may be worthwhile from the point of view of the model litigant to put before the court all the information the Commonwealth has. Doing this would also allow the prosecution to control the proceedings rather than have defence call, proof and lead evidence in the defence case leaving the prosecution to attack the evidence in cross examination. The fact that we say the court should not rely on the evidence may come out in a more positive and compelling way rather than having a defensive witness under cross examination.^[816]

6 Outcomes of DIAC age assessment interviews conducted since December 2011

Since the Commonwealth agencies agreed in December 2011 that DIAC would recommence focused age assessment interviews, the majority of individuals suspected of people smuggling who have said that they were minors have been assessed by DIAC as likely to be minors and have been returned to Indonesia.

DIAC has told the Commission that, between December 2011 and 20 April 2012, 56 individuals were interviewed by DIAC, assessed as likely to be minors, and subsequently not referred to the AFP.^[817]

The AFP has also provided statistics about the number of individuals suspected of people smuggling who have been assessed to be minors through this process. Records of the AFP indicate that between 21 December 2011 and 23 May 2012, there were 98 crew arrivals. The Commission has not been provided with information about how many of these individuals participated in DIAC age assessment interviews. The AFP has provided the following information to the Inquiry concerning the 98 crew:

• 50 [were] not ... referred to the AFP by DIAC; and
• 48 were referred to the AFP [by DIAC] with the following outcomes:
  • 4 are currently before the courts charged as adults and age is not in dispute;
  • 15 are currently under investigation, of which 2 are suspected juvenile recidivists;
  • 29 were not charged;
  • 9 were assessed as adults but there was insufficient evidence; and
  • 20 were given benefit of doubt as possible juveniles.^[818]

This information indicates that a large proportion of the crew who have arrived since December 2011 have been given the benefit of the doubt that they may in fact be minors and have been returned to Indonesia.

7 Findings

It is clear from international research that where interviewers have the appropriate knowledge and experience, are well-trained, follow a clear procedure, and carefully document their results, focused age interviews are able to provide valuable information about an individual’s age. Some indirect support for this conclusion can be found in the Australian context; Bowen DCJ noted in R v Daud that he could attach relatively little weight to the evidence of an interviewer who had not had any formal training whatsoever in assessing age and whose past assessments had not been shown to be correct.^[819]

However, focused age interviews have some inherent limitations, including potential problems with interpretation and the risk that an interviewer has an inadequate understanding of the social and cultural circumstances of the interviewee. Consequently, in line with human rights principles, a wide margin of benefit of the doubt should be afforded to someone who says that he is a child.

It is disappointing that the findings of the DIAC focused age assessment interviews conducted in October 2010 were largely disregarded by the AFP; they instead relied upon wrist x-ray analysis as evidence of age. This led to prolonged periods of ongoing detention, including in adult correctional facilities, for individuals who DIAC had found were likely to be minors. In the vast majority of these cases the prosecutions were ultimately discontinued.

It appears that the focused age assessment interviews conducted by the AFP in November 2010 were based on inappropriate questions and that they produced unreliable results.

The Commission is not critical of the practice, which has been in place since December 2011, of DIAC conducting focused age interviews with young Indonesians suspected of people smuggling offences whose age is in doubt and only referring to the AFP those individuals it concludes are likely to be adults. This process appears to afford a wide benefit of the doubt to individuals who say that they are children.

However, a preferable practice, particularly if a focused age assessment interview is to be relied on in a legal proceeding, would be it to be conducted by appropriately trained, Indonesian speaking interviewers who are familiar with the culture of the places from which the young Indonesians suspected of people smuggling come. The integrity of the interview process would also be enhanced were the interviewers to be independent from the government departments and agencies responsible for making decisions about the young Indonesians.

Additionally, individuals who are invited to participate in a focused age assessment interview which may be relied on in legal proceedings should be given an opportunity to speak with a lawyer prior to doing so. Legal aid agencies to which individuals invited to participate in a focused age assessment interview are referred should be informed of the nature and purpose of the interviews in order for them to be able to provide such advice.

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^[745] Victoria Legal Aid, Submission 13, pp 18–19.
^[746] European Migration Network, Policies on Reception, Return and Integration Arrangements for, and Numbers of, Unaccompanied Minors – an EU Comparative Study (May 2010), p 76. At http://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?directoryID=115 (viewed 9 July 2012).
^[747] Professor Al Aynsley-Green, Submission 38, p 14.
^[748] Professor Al Aynsley-Green, Submission 38, p 14.
^[749] Professor Al Aynsley-Green, Submission 38, p 14.
^[750] Children’s Commissioners and Guardians, Submission 31, pp 3–4.
^[751] Northern Territory Legal Aid Commission, Submission 32, p 4.
^[752] Legal Aid NSW, Submission 35, p 2.
^[753] United Nations High Commissioner for Refugees, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, p 2. At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6b3360 (viewed 9 July 2012).
^[754] Professor Al Aynsley-Green, Submission 38, p 14.
^[755] Deputy Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 172.
^[756] DIAC, Response to draft report, 6 July 2012.
^[757] DIAC, Response to draft report, 6 July 2012.
^[758] Secretary, DIAC, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 December 2011, Attachment B.
^[759] Secretary, DIAC, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 December 2011, Attachment B.
^[760] Secretary, DIAC, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 December 2011, Attachment B.
^[761] Department of Immigration and Citizenship, Submission 37.
^[762] Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, Email to Secretary, DIAC, 16 September 2010 (DIAC document mail39646837).
^[763] DIAC document mail39646837, above.
^[764] DIAC document mail39646837, above.
^[765] Officer for Principal Advisor, DIAC, ‘Indonesian Crew Minors’, Attachment – Email from Officer for Principal Advisor, DIAC, 19 October 2010 (DIAC document mail39646853).
^[766] Acting Principal Advisor, DIAC, Email to Federal Officers, AFP, 14 October 2010 (DIAC document mail39646172).
^[767] AFP, Response to draft report, 6 July 2012, pp 7–8.
^[768] Acting Deputy Commissioner Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 5 April 2012, p 3.
^[769] Federal Agent, AFP, Email to Officers, AFP, 18 November 2010 (DIAC document mail39642142).
^[770] DIAC document mail39642142, above.
^[771] AFP, Response to draft report, 6 July 2012, p 8.
^[772] Federal Agent, AFP, Email to Officer, DIAC, 19 November 2010 (DIAC document mail39642142).
^[773] Acting Deputy Commissioner Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 5 April 2012, p 3.
^[774] Federal Agent, AFP, Email to Legal Officer, CDPP, 2 November 2010 (DUR041 – CDPP document 003.0104).
^[775] Senior Assistant Director, People Smuggling Branch, CDPP, People Smuggling Prosecutions Age Determination Issues, 15 December 2010 (CDPP document Attachment D document 4) (CDPP People Smuggling Prosecutions – Paper), pp 10–12.
^[776] Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, Email to Officers, DIAC, 27 January 2011 (DIAC document mail39642150).
^[777] DIAC document mail39642150, above.
^[778] DIAC, Response to draft report, 6 July 2012.
^[779] 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).
^[780] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011.
^[781] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011.
^[782] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011.
^[783] Federal Agent, Team Leader People Smuggling Strike Team, AFP, ‘Results of meeting with [Professor] re: age determination questioning’, 4 August 2011, Attachment – Email from Federal Agent, AFP, to Acting Assistant Secretary, AGD, 17 October 2011 (AGD document IMP-15). [Professor] is from the Crawford School of Economics and Government, Australian National University.
^[784] Commonwealth agencies meeting on people smuggling crew issues supporting the Senior Officials’ Committee teleconference, Minutes and Outcomes, AGD, 12 August 2011 (AGD document PROS-62).
^[785] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012, p 7; Federal Agent, Team Leader People Smuggling Strike Team, AFP, ‘Results of meeting with [Professor] re: age determination questioning’, 4 August 2011, Attachment – Email from Federal Agent, AFP, to Acting Assistant Secretary, AGD, 17 October 2011 (AGD document IMP-15).
^[786] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012, p 7.
^[787] Australian Government, Joint submission, Submission 30, pp 14–15.
^[788] Australian Government, Joint submission, Submission 30, p 15.
^[789] DIAC, Response to draft report, 6 July 2012.
^[790] Australian Government, Joint submission, Submission 30, p 11.
^[791] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012, p 8.
^[792] Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, Email to Secretary, DIAC, 16 September 2010 (DIAC document mail39646837).
^[793] Anthony Sheldon, Submission 26, p 3.
^[794] R v Daud [2011] WADC 175, 2.
^[795] R v Daud [2011] WADC 175, 2.
^[796] Dr V. Low, Medical opinion, AFP, 4 May 2011 (WID021 – CDPP document 089.0206).
^[797] Dr V. Low, Expert medical report, AFP, 22 October 2010 (DUR041 – CDPP document 003.0124).
^[798] Deputy Director, CDPP Perth Office, Email to Officers, CDPP Perth Office, 12 April 2011 (TRA029 – CDPP document 315.0275).
^[799] Acting Principal Advisor, DIAC, Email to Federal Agents, AFP, 6 October 2010 (DUR041 – DIAC document mail39642130).
^[800] Defence Barrister, Email to Legal Officer, CDPP, 8 October 2010 (DUR041 – CDPP document 003.0143); Legal Officer, CDPP, Email to Deputy Director, CDPP Perth Office, 8 October 2010 (DUR041 – CDPP document 003.0143). Two expert reports were sought, one of which stated that his bone age ‘approximates 19 years’ and the other of which stated that he was over 18 years of age and close to 19 years of age.
^[801] Assistant Deputy Director, CDPP Sydney Office, Letter to Federal Agent, AFP, 26 November 2010 (DUR041 – CDPP document 003.0028).
^[802] Federal Agent, AFP Brisbane Office, Case Note, 3 August 2010 (HAM046 – AFP document 8); Age assessment interview report, DIAC, 7 October 2010 (HAM046 – AFP document 9); Federal Agent, AFP, Case Note, 14 May 2010 (GEE080 – AFP document 9); Age assessment interview report, DIAC, 7 October 2010 (GEE080 – DIAC document).
^[803] Consent to carry out a prescribed procedure (wrist x-ray) – individual, 1 April 2010 (HAM046 – AFP document 1); Cancellation of Criminal Justice Stay Certificate, AGD, 22 October 2010 (HAM046 – DIAC document); Federal Agent, AFP Darwin Office, File Note, 7 May 2010 (GEE080 – AFP document 1); Cancellation of Criminal Justice Stay Certificate, AGD, 22 October 2010 (GEE080 – DIAC document).
^[804] Federal Agent, AFP, Case Note – Decision not to prosecute, 26 November 2010 (NOK040 – AFP document 1); Federal Agent, AFP Sydney Office, Case Note – Notification that NOK040 is yet to be repatriated, 10 February 2011 (NOK040 – AFP document 2).
^[805] Federal Agent, AFP, Email to Officer, DIAC, 19 November 2010 (DIAC document mail39642142).
^[806] BOM062; TOW043; IRI056; KIN050.
^[807] NOK041.
^[808] Legal Aid Queensland, Submission 6, p 1.
^[809] Northern Territory Legal Aid Commission, Submission 32, p 4; Legal Aid NSW, Submission 35, p 2.
^[810] Internal minute outlining discussions from 4 November 2010 meeting, AFP (AFP document).
^[811] CDPP People Smuggling Prosecutions – Paper, note 31, pp 11–12.
^[812] CDPP People Smuggling Prosecutions – Paper, above, p 12.
^[813] Deputy Director, CDPP Perth Office, Email to Senior Legal Officer, CDPP Perth Office, 25 March 2011 (JDT046 – CDPP document 110.0504); Officer, DIAC, Email to Federal Agent, AFP, 20 March 2011 (JDT046 – CDPP document 110.0504).
^[814] Senior Assistant Director, Legal Policy and Practice Management, CDPP, Letter to Assistant Commissioner, National Manager Crime Operations, AFP, 3 March 2011 (CDPP document 5 - Attachment D).
^[815] Northern Territory Legal Aid Commission, Submission 32, p 4.
^[816] Senior Assistant Director, CDPP, Email to Deputy Director, CDPP Perth Office, 20 April 2011 (JDT046 – CDPP document 064.0053).
^[817] Assistant Secretary, Identity Branch, DIAC, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 269.
^[818] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012, p 8.
^[819] R v Daud [2011] WADC 175, 27.