Complaints

Search

Executive Summary

An age of uncertainty

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

Executive Summary

This Inquiry is concerned with the human rights of children.

Between late 2008 and late 2011, 180 young Indonesians who said that they were children arrived in Australia having worked as crew on boats bringing asylum seekers to Australia.

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

However, in many cases the young Indonesians were not given the benefit of the doubt and treated as children until it was established that they were in fact adults. Instead, in most cases until mid-2011, Australian authorities assessed whether they were adults by relying on wrist x-ray analysis.

Where wrist x-ray analysis suggested that a young Indonesian was skeletally immature and therefore likely to be a child, he was ordinarily returned to Indonesian (although in some cases only after a prolonged period of immigration detention).

However, in most cases where wrist x-ray analysis suggested that a young Indonesian was skeletally mature, Australian authorities immediately treated him as an adult, even if other age assessment processes suggested that he might be a child. The consequences for young Indonesians assessed to be skeletally mature included prolonged periods of detention.

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

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

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

This led to the prolonged detention of some individuals likely to have been children in immigration detention facilities and, in many cases, thereafter in adult correctional facilities. For example, the 48 individuals who were charged as adults after their wrist were x-rayed, but ultimately had the prosecutions against them discontinued, spent an average of 431 days in detention, of which on average 199 days, or well over six months, were spent in adult correctional facilities. Many of these individuals are likely to have been children at the time of their apprehension.

In 15 cases where young Indonesians were convicted, it was eventually established by the Australian authorities that there was doubt about whether the individuals were adults at the time of their apprehension. These young Indonesians were released on licence, having spent on average 948 days in detention, of which on average 864 days, or well over two years, were spent in adult correctional facilities.

The approach to the age assessment of young Indonesians suspected of people smuggling has now changed. Since July 2011, only one individual has had his wrist x-rayed. In late 2011, the Office of the Commonwealth Director of Public Prosecutions (Office of the CDPP) stopped relying on wrist x-ray analysis as evidence of age where there was no other probative evidence of age. In December 2011, a new process commenced whereby the Department of Immigration and Citizenship (DIAC) conducts focused age assessment interviews with all individuals whose age is in doubt and only refers to the Australian Federal Police (AFP) those individuals who it concludes are likely to be adults.

These are welcome developments. However, they came too late for the many young Indonesians who were not given the benefit of the doubt, whose ages were incorrectly assessed, and who consequently experienced significant breaches of their rights. Australia has committed to respect, protect and promote the rights of all children within its jurisdiction. This report demonstrates, that in many cases the rights of young Indonesians suspected of people smuggling who said that they were children were inadequately protected.

1 Major findings

The specific findings with regard to each of the issues considered during this Inquiry are detailed at the end of each chapter. Chapter 8 then 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.

The key specific findings of this Inquiry about age assessment techniques can be summarised as follows:

  • wrist x-ray analysis is not informative of whether an individual is over 18 years of age
  • dental x-ray analysis is not sufficiently informative of whether an individual is over 18 years of age for use in criminal proceedings
  • any use of radiation for age assessment purposes should first be justified as required by internationally accepted standards
  • there is no known biomedical marker which is sufficiently informative of age to be used with confidence in the context of a criminal proceeding
  • there is no evidence that a multi-disciplinary approach to age assessment is more accurate than medical or non-medical approaches alone; consequently, if a multidisciplinary approach is used, a wide margin of benefit of the doubt should be afforded to individuals whose age is being assessed
  • focused age interviews, if conducted appropriately, and if they afford a wide margin of the benefit of the doubt to individuals who say that they are children, are able to provide valuable information about an individual’s age.

The key specific findings of this Inquiry about the conduct of Commonwealth agencies are as follows:

  • the Office of the CDPP should not have maintained confidence in the Commonwealth’s key expert witness, and should have ceased adducing wrist x-ray analysis as evidence that an individual was over the age of 18 years, at least by mid-2011 and possibly earlier
  • the Office of the CDPP should have disclosed to defence counsel material of which it was aware that called into question the evidence of the Commonwealth’s key expert witness
  • the AFP were aware of material that called into question reliance on wrist x-ray analysis as evidence that an individual was over the age of 18 years yet continued to use the procedure as a means of age assessment
  • the AGD was aware of material that called into question reliance on wrist x-ray analysis as evidence that an individual was over the age of 18 years; however it continued to support the use of the procedure and did not provide the Attorney-General with a précis of the literature critical of the use of wrist x-ray analysis for this purpose
  • in many cases the benefit of the doubt was not afforded to young Indonesians suspected of people smuggling – uniformly, a person assessed by wrist x-ray analysis to be skeletally mature was charged as an adult even when he said that he was a child
  • in many cases, individuals arrested and charged as adults on the basis of wrist x-ray evidence ultimately had their prosecutions discontinued, but only after they had spent very long periods of time in detention
  • some individuals were charged as adults despite the report on the analysis of their wrist x-ray being inconclusive as to whether they were an adult
  • wrist x-ray analysis was relied upon as evidence of age despite alternative age assessment procedures, for example DIAC focused age assessment interviews, finding it likely that the individual was under 18 years of age
  • in many cases it appears that the required consents for a wrist x-ray to be taken were not properly obtained in many cases inadequate efforts were made by the AFP to obtain from Indonesia age related information regarding young Indonesians suspected of people smuggling
  • many young Indonesians who it is now accepted were likely to have been children at the time of their apprehension spent prolonged periods of time in immigration detention or in adult correctional facilities
  • prolonged detention in adult correctional facilities was partly a consequence of the Commonwealth policy, until mid-June 2011, to oppose applications for bail made by individuals charged with people smuggling offences
  • no steps were taken to ensure that young Indonesians suspected of people smuggling had a guardian in Australia.

The Commission recognises that steps were taken to ensure that young Indonesians suspected of people smuggling were generally offered an opportunity to speak with a lawyer prior to providing consent to a wrist x-ray or prior to making a decision to participate in an interview with the AFP.

Based on these findings, the Commission has concluded that the Australian Government failed to respect the rights of children. Specifically, the Australian Government failed 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
  • that the best interests of children were always a primary consideration
  • that the detention of children was always a measure of last resort and for the shortest appropriate period of time
  • that children deprived of their liberty were separated from adults
  • respect for the rights of children alleged to have committed an offence
  • respect for the rights of children who were separated from their families.

These findings are explored in detail in Chapter 8.

2 Report overview

The structure of this report is as follows:

Chapter 1 provides a short background to the Inquiry and information about the way in which the Inquiry was conducted.

Chapter 2 considers the use of wrist x-ray analysis as a means of assessing age, and whether it is sufficiently informative of whether a young person has attained 18 years of age to be relied on in a criminal proceeding. It also considers whether it is appropriate to use dental x-ray analysis for that purpose. Finally, it gives brief consideration to the analysis of other biomedical markers for the purpose of assessing age in criminal proceedings.

Chapter 3 considers the Commonwealth’s approach to the use of wrist x-ray analysis to assess age. It adopts a chronological approach and examines what each relevant Commonwealth agency knew, or should have known, at particular times about the value of analysis of biomedical markers for the purpose of establishing whether an individual has attained 18 years of age.

Chapter 4 sets out some of the Commonwealth’s practices regarding the use of wrist x-ray analysis as a means of assessing chronological age in the context of a criminal prosecution. It highlights where those practices were contrary to stated Australian Government policy and circumstances where the use of wrist x-ray analysis as a means of assessing age resulted in individuals who may have been children spending long periods of time in detention, including in adult correctional facilities.

Whether focused age assessment interviews and requests for documentary evidence from an individual’s country of origin are appropriate processes for assessing age are discussed in Chapters 5 and 6 respectively. These chapters also consider the Commonwealth’s practices regarding the use of these processes with respect to young Indonesians suspected of people smuggling.

Chapter 7 discusses some further aspects of the treatment of individuals suspected of people smuggling offences who said that they were children, including the length of time for which they were detained, their place of detention, their access to legal advice and assistance and the issue of guardianship.

Finally, Chapter 8 sets out the Inquiry’s major findings and recommendations. It considers whether the human rights set out in the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights have been breached through the treatment of individuals suspected of people smuggling who have said that they were children at the time of their alleged offence.

^Top