4 The use of wrist x-ray analysis

An age of uncertainty

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

 

Chapter 4: The use of wrist x-ray analysis

1 Introduction

This chapter considers some of the Commonwealth’s practices regarding the use of wrist x-ray analysis as a means of assessing chronological age for the purposes of criminal prosecution. It highlights situations where the reliance on wrist x-rays as evidence of age was contrary to stated Australian Government policy; or where it contributed to individuals who were in fact children, or who are likely to have been children, spending long periods of time in detention, including in adult correctional facilities.

Documents before the Commission indicate that wrist x-ray analysis was widely used as a method of assessing age for young Indonesians suspected of people smuggling who said that they were children. The Joint Commonwealth submission to the Inquiry reports that:

In the period from September 2008 to 27 January 2012, 208 people smuggling crew have claimed to be a minor. Of these, 123 had wrist X-rays undertaken. These wrist X-rays indicated that 86 of these persons were skeletally mature, while there are three awaiting a wrist X-ray or charging decision.^[486]

The Commission has considered the records of young Indonesians suspected of people smuggling who arrived in Australia between 29 September 2008 and 22 November 2011. The records provided to the Commission for the purposes of the Inquiry indicate that 180 individuals suspected of people smuggling who arrived in Australia during this time said that they were children.^[487]

Of those 180 individuals, 118 had wrist x-rays taken. The outcomes for these 118 were as follows:

• 33 were removed from Australia without charge
• 48 were charged with people smuggling offences and ultimately had the prosecution against them discontinued
• 29 were charged and convicted with people smuggling offences
• 6 were charged and found not guilty
• 2 are currently before the courts.

The outcomes for the 62 who did not have their wrists x-rayed were as follows:

• 51 were removed without charge
• 7 were charged with people smuggling offences and ultimately had the prosecution against them discontinued
• 2 are currently before the courts
• 2 were charged with people smuggling offences and were convicted.

This chapter opens with a consideration of the issue of whether the benefit of the doubt was appropriately afforded to the young Indonesians whose wrists were x-rayed. It then considers issues relating to the practices adopted when obtaining wrist x-rays and to the ways in which wrist x-ray analyses were relied on for the purpose of age assessment. It draws the following conclusions:

• some individuals who were assessed by wrist x-ray analysis as being under 18 years of age nonetheless remained in detention for long periods of time
• wrist x-rays were often used as a first and only means of age assessment
• some individuals were charged and convicted as adults on the basis of wrist x-rays that were analysed as being inconclusive as to their chronological age
• some individuals did not contest their age when presented with an analysis of their wrist x-ray
• consent for a wrist x-ray to be taken was frequently not validly obtained.

Issues relating to individuals whose wrists were not x-rayed and who were removed from Australia are discussed in Chapter 7.

2 Benefit of the doubt

As noted in Chapter 3, the Crimes Amendment (Age Determination) Act 2001 (Cth) authorised the specification of a procedure as a prescribed procedure for the determination of age for the purposes of the Crimes Act 1914 (Cth). Wrist x-rays were specified by regulation as a prescribed procedure for the purposes of the Crimes Act in 2001.^[488]

As also noted earlier in this report, the report of the 2001 Senate Legal and Constitutional Legislation Committee Inquiry into the Crimes Amendment (Age Determination) Bill, observed that the Australian Federal Police (AFP) ‘advised that it was prepared to treat all persons who were not clearly adults as if they were juvenile’.^[489]

In its report, the Committee recommended that the Explanatory Memorandum for the Bill be amended to include a specific reference to an individual being given the benefit of the doubt in cases where doubt about that individual’s age may exist.^[490] The Revised Explanatory Memorandum incorporates in part the Senate Committee’s recommendation by confirming that the prosecution bears the onus of establishing on the balance of probabilities that the individual is an adult. The Revised Explanatory Memorandum reads:

In those instances where the age of a suspect or defendant cannot be accurately determined the current legal position will prevail. Unless the prosecution can discharge the burden of establishing on the balance of probabilities that a defendant is an adult, the defendant will be treated as a juvenile. This ensures that no injustice will occur if a defendant’s age is still in doubt at the time of trial.^[491]

From at least April 2011, the Office of the Commonwealth Director of Public Prosecutions (Office of the CDPP) was aware that the AFP had advised the 2001 Senate Committee that it was prepared to treat all persons who were not clearly adults as if they were juvenile. In an email dated 12 April 2011, the Deputy Director of the Perth Office of the CDPP expressed his concern that prosecutions were being continued against individuals suspected of people smuggling in circumstances in which the benefit of the doubt should have been applied. The Deputy Director referred specifically to the AFP advice to the 2001 Senate Committee Inquiry saying that ‘[i]t appears that before the introduction of the Bill, the AFP may have given an undertaking, or at least the equivalent, to give the benefit of the doubt to anybody whose wrist x-ray tested below 19’.^[492]

On 2 May 2011, the Criminal Justice Division of the Attorney-General’s Department (AGD) received formal legal advice from the department’s Office of International Law (OIL) in relation to Australia’s obligations under the Convention on the Rights of the Child (CRC) towards individuals apprehended, detained, charged and prosecuted for people smuggling offences. The advice made clear that Australia’s obligations under the CRC require that the principle of the benefit of the doubt be applied.^[493]

Throughout 2011, the Commonwealth asserted that Australian Government policy was to apply the benefit of the doubt to any individual whose age was in doubt. For example, talking points prepared for the Australia-Indonesia Consular Consultations held on 30 June 2011 state that the benefit of the doubt would be applied to individuals suspected of people smuggling whose age was in doubt. Specifically, the talking points state:

Commonwealth agencies have and will continue to take a conservative approach to ensure that only the strongest age determination cases proceed to charge and prosecution. ...

• Where information from [age determination] procedures or verified documentary evidence suggests a person is a minor, the benefit of the doubt would be given to the person and they would be treated as a minor.
• For matters prior to charge, if the AFP investigations reveal that there are conflicting results between the procedures or document verified by the Indonesian Government indicates that individual is a minor, the individual will not be charged and will be removed from Australia. 
• Should matters arise during the prosecution process, after somebody has been charged, the CDPP will take into account the AFP approach in considering whether a prosecution will continue in accordance with the Prosecution Policy of the Commonwealth.^[494]

On 30 June 2011, the then Attorney-General wrote to the President of the Commission with regard to the age determination process for people smuggling crew who say that they are minors. The then Attorney-General proposed that the principle of the benefit of the doubt be applied ‘more proactively’ where a person says that he is a minor. More specifically, the Attorney-General stated:

For matters prior to charge, if the AFP investigations reveal that there are conflicting results between the procedures or document verified by the Indonesian Government indicates that individual is a minor, the individual will not be charged and will be removed from Australia. Should matters arise during the prosecution process, after somebody has been charged, the CDPP will continue in accordance with the Prosecution Policy of the Commonwealth. Consideration will continue to be given to charging or continuing a prosecution against a person as a minor in exceptional circumstances on the basis of their significant involvement in a people smuggling venture or multiple ventures.^[495]

On 22 August 2011, the then Attorney-General wrote to the President again. In response to concerns about age determination procedures raised by the President, the then Attorney-General advised that he was not convinced that there was a need for an independent review of all people smuggling matters in which age was in dispute. One reason he gave for this was that he considered that the principle of the benefit of the doubt had been applied to cases in which there was some doubt about an individual’s age. The letter asserted:

by giving the benefit of the doubt in cases involving age, in particular from verified documentation relating to age, AFP and CDPP only proceed with cases with the highest probability that the person is an adult, and where information gathered consistently indicates that this is the case.^[496]

The Joint Commonwealth submission to the Inquiry maintains that the Commonwealth continues to give individuals the benefit of the doubt and return them to Indonesia where all material available supports the individual’s claim to be a minor.^[497] It further asserts that the Commonwealth recognises that, given the limitations of currently available processes for assessing age, ‘the best approach is to adopt a combination of age determination procedures and to give defendants the benefit of the doubt’.^[498]

2.1 The benefit of the doubt was not afforded in a significant number of cases

It is clear from the documents before the Commission that, in practice, the benefit of the doubt was not afforded to a significant number of young Indonesians suspected of people smuggling who said that they were children. Sections 3–7 of this chapter discuss some of the cases in which this was not done.

In November 2010, the Department of Immigration and Citizenship (DIAC) questioned whether the principle of the benefit of the doubt was being applied to young Indonesians in the criminal justice system. It did so when responding to a request to comment on ‘whole-of-government talking points’ that had been prepared by AGD about age determination procedures. DIAC commented that, in their experience, the talking points were not reflective of actual practice at the time. The DIAC officer recorded that:

I’ve just seen the [question time brief] from AGD and am curious about one of the [talking points], i.e.: Where an individual claims to be a juvenile, they are treated as a juvenile in the criminal justice system unless a court determines the person to be an adult based on the relevant age determination process.

Re the alleged 14 year old on remand in Perth, has a court determined he is an adult? If not, then the [talking point] is not accurate.^[499]

Shortly after the Criminal Justice Division of AGD received the legal advice from OIL dated 2 May 2011 referred to above, a Ministers’ Office Brief was prepared within that division for the Office of the then Attorney-General and the then Minister for Home Affairs and Justice. One of the talking points in the Brief concerns the circumstances in which a criminal charge would be brought against an individual suspected of people smuggling whose age is in doubt. The talking point noted that ‘[w]here all available information indicates the person is unlikely to be a minor, the person is charged and brought before the court as an adult’.^[500]

At the Inquiry hearing for Commonwealth agencies, the Commission President observed that this statement reflected a reversal of the usual rule and suggested a failure to give the benefit of the doubt to the young person. An officer from AGD agreed that it was possible to interpret the statement in that way.^[501]

The AGD officer explained the procedure at that time in the following way:

the procedure as we understood it was that the AFP and DPP would have regard to all available information to decide whether in fact a person was a minor or not. If they believed the person was not a minor then they would proceed with charging them.^[502]

It is doubtful that this procedure would have resulted in individuals being given the benefit of the doubt. The described procedure assumes that it is appropriate for the AFP and the Office of the CDPP to consider only two options – whether they were satisfied that the person was a minor, or alternatively, not a minor. For the benefit of the doubt to be afforded to a young person, a decision maker must be prepared to recognise three, not two, options; first, that they can be satisfied the person is a minor, second, that they can be satisfied the person is not a minor, and third, that the person is someone about whose age there is reasonable doubt.

It appears that in a number of cases the practice that was followed required an individual about whose age there was reasonable doubt to prove to the prosecuting authorities that he was, in fact, under the age of 18 years.

2.2 Issues of proof

There has been an inconsistent understanding of whether the prosecution or the defence, if either, bears the onus of proof in a proceeding to determine whether an individual suspected of people smuggling is a minor.

As noted above, the 2001 Senate Legal and Constitutional Legislation Committee Report made a recommendation that the Explanatory Memorandum for the Bill be amended to include a statement that persons whose age cannot be precisely determined will be given the benefit of the doubt and treated as juveniles.^[503] During his Second Reading Speech in the House of Representatives, the then Attorney-General acknowledged this concern and stated that it would be addressed ‘by referring to the current legal position that the prosecution bears the onus of establishing on the balance of probabilities that the defendant is an adult’.^[504]

As is also noted above, in the Second Reading Speech in the Senate, the Special Minister of State explained that the prosecution would bear the onus of proving that an individual was an adult at the time of the offence.^[505]

The question of which party, if either, bears the onus of proof is important for a number of reasons. The age of an accused person can be critical to a court’s jurisdiction. Some state courts have exclusive jurisdiction to hear and determine a charge alleged to have been committed by a child.^[506] This report does not address the issue of onus of proof of age when the age of the accused affects the court’s jurisdiction. However, documents before the Commission reveal that, on occasions, the jurisdiction of a court to hear a people smuggling prosecution has been challenged on the basis of the age of the accused person.^[507]

The issue of onus of proof of age is important for the purposes of provisions of the Crimes Act which attribute significance to age. Section 19B of the Crimes Act contains a general power authorising a court to dismiss a charge of a federal offence without recording a conviction.^[508] However, s 236A of the Migration Act limits this power. It provides:

The court may make an order under section 19B of the Crimes Act 1914 in respect of a charge for an offence against section 233B, 233C or 234A only if it is established on the balance of probabilities that the person charged was aged under 18 years when the offence was alleged to have been committed.

Further, the mandatory sentences provided in respect of some people smuggling and related offences by s 236 of the Migration Act do not apply where the offender was under 18 at the time of the offence. Section 236B(2) of the Migration Act provides that ‘[t]his section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed’.

Neither s 236A nor s 236B(2) of the Migration Act makes clear which party, if either, bears the burden of proof to establish the age of the individual charged or convicted.

Most courts have held that the prosecution must prove that an individual was not under the age of 18 at the relevant time.^[509] However, in some cases, courts have found that the defendant bears the onus of establishing that he was under the age of 18 at the time of the alleged offence.^[510] In other decisions, the court has held that no burden rests on either party.^[511] It is current practice for the Office of the CDPP to accept the onus of proving that an individual is not under the age of 18 years.^[512]

A number of submissions made by State and Territory Legal Aid Commissions to the Inquiry expressed concern about the inconsistent approach of courts to the onus of proof.

Legal Aid Queensland’s submission to the Inquiry argues that there has been an ‘informal reversal’ of the onus of proof where a person’s status as a juvenile is in issue. It states:

The prosecuting authority simply charges the individual as an adult and then the defence is forced into a position where they are required to conduct enquiries and gather evidence to prove that the individual is in fact a child.^[513]

This submission argues that a more appropriate approach would be for the ‘prosecuting authorities to be in possession of material that is sufficient to determine age to the requisite standard before charges are laid’.^[514]

Similarly, the Northern Territory Legal Aid Commission submitted that:

The use of wrist x-rays as definitive places the onus back on the individual and their representative, which is likely to be legal aid, to establish proof of age.^[515]

The Joint Commonwealth submission to the Inquiry noted the inconsistent approach to the onus of proof in age determination matters and advised that the Commonwealth is considering taking steps to ensure a more uniform approach. It states:

To encourage consistency between the courts in each jurisdiction, the Commonwealth is considering possible amendments to the Migration Act to expressly provide that, where a defendant raises the issue of age during proceedings, the prosecution bears the legal burden to establish the defendant was an adult at the time the offence was committed.^[516]

This is not the first time the Commonwealth has considered amending the Migration Act to reflect concern about the inconsistent application of the onus of proof between jurisdictions.

In early 2010, the Commonwealth considered amending the Migration Act to provide explicitly that defendants bear the legal burden of proving that they were under 18 years of age for the purposes of an offence against the Migration Act.^[517] OIL provided advice that a legislative provision that explicitly requires a person claiming to be a child to prove that they are a child might result in a situation where Australia may be in breach of obligations under the CRC.^[518] OIL further advised that the government would be open to criticism were a person who was in fact a child not given the protections provided for under the CRC because they were not able to prove that they were a child.^[519]

In a subsequent email, an officer from OIL states her understanding that, in practice, the defence is required to prove age even though this is not expressly required by law. She notes that any amendment to explicitly provide that the defendant bear the legal burden to prove he was under 18 may draw adverse attention to that practice^[520]

No steps were taken to amend the Migration Act at that time.

In February 2011, AGD was asked to develop an options paper on possible changes to the domestic legal framework criminalising people smuggling.^[521] The discussion paper circulated to the Commonwealth agencies in connection with that Ministerial request noted that the requirement in the Migration Act for the defendant to prove his or her age ‘may be in breach of Australia’s international obligations’.^[522] The paper recommended that the Migration Act be amended to ensure that Australia meet its international obligations to ‘expressly provide that the defendant bears the evidentiary burden and the prosecution bears the legal burden of having to disprove the age of the defendant’ during sentencing.^[523]

It was eventually agreed by the Commonwealth agencies that it would be appropriate to redraft the relevant provisions of the Migration Act to ensure that during sentencing the defendant did not bear the burden of proving that he was under 18 years of age. However, the Commission is not aware of any policy position adopted by the government with respect this proposed amendment to the Migration Act.

In November 2011, Senator Hanson-Young introduced the Crimes Amendment (Fairness for Minors) Bill 2011 (Cth) into the Senate. The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The Senate Committee report recommended that:

the Australian Government introduce legislation to expressly provide that, where a person raises the issue of age during criminal proceedings, the prosecution bears the burden of proof to establish that the person was an adult at the time of the relevant offence.^[524]

2.3 A high level of scepticism

It appears that one explanation for the benefit of the doubt not always being given to young Indonesians may be the development of a high level of scepticism concerning their claims to be under the age of 18 years.

In 2001, when the Crimes Amendment (Age Determination) Bill (Cth) was introduced, the Special Minister of State, in his second reading speech, stated:

Determining the age of a suspect is particularly important in relation to people smuggling offences, where foreign nationals (such as the crew on a vessel containing suspected unlawful non-citizens) refuse to provide details of their age, or make false claims that they are under 18 years old, and there is no documentation or means to prove otherwise.^[525]

This speech further asserted:

The age determination powers contained in the Bill will send a strong message to those engaged in people smuggling that they cannot circumvent or abuse the Australian legal system by deceptively claiming they are under 18 years old. It will also avoid the undesirable situation of placing adult suspects in juvenile detention facilities or vice versa.^[526]

Documents before the Commission suggest that it was often assumed that any difference between an individual’s claimed age and his age as assessed on the basis of a wrist x-ray could be attributed to the individual’s lying about his age.

For example, in an email exchange between the AFP and the Office of the CDPP about the preparation of the material facts for sentencing in the case of ULT055, an AFP officer stated:

I think it would be good to make mention of the fact that he misled us by stating he was a juvenile and after a costly and time consuming procedure was found not to be.^[527]

In the case of VMT011, the AFP statement of facts suggested the young Indonesian was deliberately lying about his age. The statement asserted:

Defendant 1 was given every opportunity to admit his guilt and tell the correct version of events but chose to hinder the investigation, beginning with the allegation that he was 15 years old.^[528]

In another case, the AFP wrote an email to the Office of the CDPP concerning the age of INN012 who maintained that he was under 18 although he had been charged as an adult. The email notes that in his interview with the AFP he gave inconsistent evidence about his age and then said that he did not know his date of birth. The AFP officer explained to the Office of the CDPP officer that individuals suspected of people smuggling often falsify their age, noting:

This is again consistent with the majority of SIEV cases whereby at the time of interception both false names and dates of birth are provided to authorities in order to minimise the chance of prosecution.^[529]

In the matter of QUE053, the prosecutor’s submissions on sentence stated that he had lied about his age. The prosecutor submitted:

The age of Mr [name] and Mr [name] should be taken into account. They were clearly young when the offending took place, as from their appearance when photographed after interception and the evidence of passengers. They lied about their age to the AFP however, in their interviews. This is apparent from the evidence of the reports of Dr Vincent Low, but the court does not yet know their true age.^[530]

Documents before the Commission indicate that Commonwealth authorities not only linked the issues of age and credibility, they began to consider that individuals only claimed to be minors to avoid prosecution and imprisonment in Australia.

For example, in one email from the AFP to an officer of the Office of the CDPP, the AFP officer describes age as a ‘bit of a chestnut that defence are using around the country on crew that ‘look’ like kids’.^[531]

In another matter, that of OFD030, the defence lawyer made submissions to the Office of the CDPP that the prosecution should be discontinued on the grounds that the accused was a juvenile. In an email providing his opinion to the Office of the CDPP on the defence submissions to discontinue, the AFP officer stated:

I have read the submissions from [OFD030]’s lawyer. It is virtually a stock standard thing that we have been getting over here in a lot of age determination challenges.

In the submission it states that [OFD030] has given the consistent dob of 1 April 1993. That is nothing new and contrary to what the lawyer says people smugglers are fully aware of the Australian Government policies and that juvenile crew members will not be prosecuted. ... The letter from [OFD030]’s lawyers is just another attempt to cut the prosecution early jumping on the back of false reporting in the media on this issue.^[532]

In another case, an AFP officer told DER024, who he was interviewing and who said that he was a child, that according to the result of the wrist x-ray analysis, he was lying about his age. The transcript of the interview records the following exchange:

Q240 Are you over the age of eighteen?

A240 THE INTERPRETER: No.

Q241 Yesterday afternoon, you were taken to the Royal Darwin Hospital, and had a wrist Xray?

A241 THE INTERPRETER: Yes.

Q242 That procedure was done, to determine your age?

A242 THE INTERPRETER: Yes.

Q243 Do you understand that two doctors who looked at your Xray, stated that you have attained the age of nineteen years?

A243 THE INTERPRETER: Yeah, because my age is from my mother. My mother told me that my age was that.

Q244 What age is that?

A244 THE INTERPRETER: Nearly, nearly fifteen years old, twenty two December, nineteen ninety four. That’s what my mother told me.

Q245 When did she tell you that?

A245 THE INTERPRETER: Since I was little. When I was little, my mum, my mum told me. So I keep using that now, I use that age.

Q246 Do you have any official documentation, that proves you have that date of birth?

A246 THE INTERPRETER: No, I don’t bring it with me.

Q247 I will put it to you, [DER024], that you stated you were fifteen years old?

A247 THE INTERPRETER: Yes.

Q248 Because you thought that if you were caught by Australian authorities, they would send you home.

A248 THE INTERPRETER: I don’t know, because I never been here. So I don’t know, because I never – I never been here before.

Q249 Were you aware that Australian authorities would send children home, who were under eighteen years?

A249 THE INTERPRETER: No.

Q250 When you were on the boat, did you discuss this with any of the crew?

A250 THE INTERPRETER: About the age and all that, yep. Did I? No.

Q251 Pardon?

A251 THE INTERPRETER: No, they didn’t talk about – I said about the age, talking about the age. I don’t even – I didn’t know that I was going to come to, and then get caught here, in Australia. ...

Q252 [DER024], the other members of the crew have told us that they lied about their age, because they know they will get sent home.

A252 THE INTERPRETER: I don’t know that.

Q253 I believe that you are lying.

A253 THE INTERPRETER: No.

Q254 The Xrays show that you are lying.

A254 THE INTERPRETER: If the Xrays say that, that means maybe, according to the Xray, that. But I believe that my mother told me that I’m – that my – fifteen years old. So I’m just follow my mum, what my mum said. But this – if it’s – they say it’s nineteen, well it’s up to you.^[533]

The reality appears to be that many young Indonesians do not know their age. In May 2012, the AFP received advice from an academic about documents proving identity and age in Indonesia. The advice confirms that many Indonesians do not know their date of birth. In particular, it states that:

many rural poor communities do not place much emphasis on precise knowledge of age according to the Gregorian calendar and that many of the rural poor have only limited literacy and rarely keep formal records of births. As a result many adopt nominal birthdays for convenience, choosing a convenient date and year that may have little or no connection with their true age.^[534]

The brief of advice provided to AGD by the Chief Scientist under cover of a letter dated 11 January 2012 also advised:

While birth registration is a standard practice among developed nations, the reality in developing nations is very different. It is estimated that only half of the children under 5 years of age have their births registered. ... it is estimated that more than 60% of births in South East Asia ... remain unregistered’. (citations omitted)^[535]

It is not suggested that no young Indonesians lied to Australian authorities about their age; it seems highly likely that some of them did. However, it is apparent from the documents provided to the Commission that often an apparently unfounded assumption was made, particularly by investigating officers, that individuals suspected of people smuggling were lying when they said that they were children. This was particularly likely to happen when a wrist x-ray was interpreted as showing that the individual was an adult.

Of course, the fact that some individuals, as seems likely, falsely claimed to be underage provides no justification for conduct that failed to respect the rights of others who might have been children.

The AFP, in response to this draft report noted that it is ‘open to the Inquiry to infer that a number of AFP officers may have held views that people smugglers routinely lied about their age’. However the AFP objected to a conclusion that there was a widespread ‘culture of disbelief’ amongst AFP officers. The response stated:

Indeed it is the role of AFP investigators to question and to challenge statements in order to illicit the best available evidence as to the age of the person being interviewed. The report notes that interviewees at times provided inconsistent answers which gives rise to the suspicion about their claimed age. The AFP is also in receipt of confidential intelligence that clearly indicates that organisers and facilitators of people smuggling ventures have instructed SIEV crews to lie about their age.^[536]

In his response to the draft report, the Commonwealth Director of Public Prosecutions also rejected any conclusion that his Office had a ‘culture of disbelief’. He stated:

The CDPP’s experience in prosecuting people smuggling offences involving crew from Indonesia is that these matters can involve complex situations and uncertainty as to precise dates of birth and accordingly the age of defendants. There have been instances of multiple dates of birth being provided and cases where different ages have been claimed by the claimant individual at different stages. These aspects, combined with other difficulties that have arisen in relation to potential evidence as to age including issues relating in particular to Indonesian documentary material, has meant that age determination can be extremely difficult, which has been reflected in the CDPP’s conduct of these matters.^[537]

3 Some individuals whose wrist x-ray analysis placed them as being under 18 remained in detention for long periods of time

The Commission recognises that almost all individuals whose wrist x-ray analysis resulted in a report that they were under 18 years of age were returned to Indonesia. The Joint Commonwealth submission to the Inquiry reports that of 123 people who were x-rayed between September 2008 and 27 January 2012, 37 were found to be skeletally immature. The submission reports that all of these young people were returned to Indonesia.^[538]

From the information and documents provided to the Commission it appears that, of the 118 people who were x-rayed between 29 September 2008 and 22 November 2011, 29 were found to be skeletally immature and subsequently returned to Indonesia.

However, it appears that in some cases, despite wrist x-ray analysis that indicated skeletal immaturity, individuals remained in detention for a long time before being returned to Indonesia.

For example, HAM046 was apprehended in February 2010 and his wrist was x-rayed in April 2010. It was not until 3 August 2010 that a decision was made not to prosecute him as he was a juvenile.^[539] In view of the Australian Government’s policy not to prosecute minors except in exceptional circumstances, this delay was regrettable. It is additionally regrettable that the AFP did not request the withdrawal of his Criminal Justice Stay Certificate (CJSC) until 20 October 2010.^[540] HAM046 spent a total of 261 days in immigration detention. He was held in immigration detention for four months following his wrist x-ray prior to a decision being made not to prosecute him and for an additional two months before his CJSC was cancelled.

Another individual, GEE080, was apprehended in April 2010 and his wrist was x-rayed that month. An AFP case note dated 14 May 2010 records that, as per current AFP policy, he will not be prosecuted and ‘can be deported’.^[541] However, no request was made for his CJSC to be withdrawn until 19 October 2010.^[542] He was not removed from Australia until November 2010. He spent 218 days in immigration detention in Australia. Again, it is concerning that following a decision not to prosecute, it took five months to cancel his CJSC and six months to remove him from Australia.

4 Until July 2011, wrist x-rays were often used as a first and only means of age assessment

Documents before the Commission indicate that the AFP routinely conducted wrist

x-rays in situations where young Indonesians contested their age and that this process was often used as the AFP’s first and only means of assessing age. As a consequence, counsel for the CDPP adduced expert evidence based on wrist x-rays as the primary, and sometimes the only, evidence to challenge a claim made by an individual suspected of people smuggling that he was a child at the date of the alleged offence.

4.1 Wrist x-rays were used as a first resort because they were a prescribed procedure

It appears that the fact that wrist x-rays were a prescribed procedure had a significant impact on the approach taken by both the AFP and the Office of the CDPP to the use of wrist x-ray analysis as a means of assessing age. It further appears that it influenced the way in which AGD officers understood the provisions of the Crimes Act for which wrist x-rays are a prescribed procedure.

At the hearing for Commonwealth agencies, the Commonwealth Director of Public Prosecutions spoke of the GP Atlas as a:

legacy with which we work as a result of being given by the Parliament access to wrist X-rays; it wouldn’t make sense other than an extremely limited and probably useless mechanism otherwise.^[543]

The Director saw the concerns of the medical profession about the reliability of wrist x-ray analysis as representing ‘a commentary on use – a fundamental difference of view in the Parliament creating this mechanism and, in effect, overriding that concern’.^[544]

The Director also spoke of wrist x-ray analysis as having ‘limitations ... as seemed to be quite apparent, even back in 2001 when before the Senate’ but expressed the view that ‘those were ... amongst the limited range of tools that we were given’.^[545]

Support for the conclusion that the Office of the CDPP held the view that wrist x-rays should be taken because they had been authorised by Parliament is contained in minutes of a meeting of Commonwealth agencies regarding ‘Age determination of people smuggling crew’. The minutes of the meeting record that a senior CDPP officer stated that ‘the current wrist X-ray procedure was considered by Parliament and the AFP and CDPP are obligated to comply with that procedure’.^[546]

The view that wrist x-rays were routinely taken because they were a prescribed procedure is also contained in talking points prepared for the Prime Minister in November 2010. The talking points included the following assertion:

Where there is doubt about whether a person arriving in Australia as an irregular maritime arrival is aged over or under 18 years of age, and the person is suspected of committing a Commonwealth offence, the Australian Federal Police conducts an age determination process in accordance with the Crimes Act 1914.^[547]

In response to questioning at the Inquiry hearing for Commonwealth agencies about whether this statement was consistent with the Second Reading Speech for the Crimes Amendment (Age Determination) Bill 2001, the First Assistant Secretary, Criminal Justice Division, AGD said:

The age determination process that’s undertaken has one prescribed procedure; the AFP is required to follow that procedure and that’s what the talking points are drawing out. The talking points are not forcibly putting forward every piece of evidence that may be relevant to age; it’s a procedure that’s required to be followed in the legislation.^[548]

The Deputy Commissioner for Operations of the AFP, when giving evidence to the same Inquiry hearing, agreed that there was evidence that, as a result of wrist x-rays having become a prescribed procedure, the authorities’ thinking had begun to shift to see wrist x-rays as a mandated procedure rather than a procedure of last resort.^[549] In its response to the draft report, the AFP stated that it ‘gives no greater weight to the fact that wrist x-rays are a prescribed procedure when considering to use the procedure over other methods’.^[550] However, the evidence before the Inquiry does not support this conclusion.

This evidence includes, for example, an email sent by an AFP officer to the Office of the CDPP which discusses the progress of the investigation and prosecution of a number of young Indonesians suspected of people smuggling who said they were under the age of 18 years. The AFP officer expressed disappointment that DIAC intended to remove them straight to Indonesia and said that ‘someone didn’t do their job correctly and [to] tell DIAC we needed to do wrist x-rays before a decision was being made’.^[551]

The NSW Legal Aid submission to this Inquiry observed that because wrist x-rays are the only prescribed procedure for age assessment, prosecutors and magistrates have given x-ray evidence undue weight in assessing age, even in circumstances in which they are aware that it is an unreliable method of assessing age.^[552]

Nothing suggests that it was the intention of the legislature that the specifying of wrist x-rays as a prescribed procedure would mean that the AFP was obliged to use them. As mentioned above, the Revised Explanatory Memorandum for the Crimes Amendment (Age Determination) Bill 2001 included the following statement:

The Bill does not contain an express requirement to exhaust all other avenues before seeking a person’s consent to, or magisterial authorisation for, a prescribed procedure. However, in practice, investigating officials will seek to determine a person’s age by all reasonable means before exercising the powers contained in the Bill. For example, if reliable documentary evidence of a person’s age is available then this may suffice.^[553]

There is, therefore, no reason to think that it was intended that the x-ray procedure should be the first and only method used by investigating officials for determining age. The preferable view is that a wrist x-ray was intended to be no more than an option available where other means of assessing age were either not practicable or not sufficiently informative. Indeed, any other view of the legislation would be difficult to reconcile with the fact that the AFP, as the material before the Commission indicates, effectively ceased using wrist x-rays to determine the age of individuals suspected of people smuggling offences who said that they were children in about July 2011.

It also appears that it was the intention of the legislature that the results of any wrist x-ray procedure would be considered as part of a range of information collected about a person’s age. The Senate Legal and Constitutional Legislation Committee, in its report on the 2001 Bill, stated that ‘[t]he Committee believes that the Bill may assist in clarifying the age of some persons suspected of, or charged with, Commonwealth offences’.^[554] The qualified nature of its belief may be assumed to be based, at least in part, on its earlier observation that:

Although the wrist x-ray is intended to demonstrate the extent of fusion of two bones, there is no real correlation between bone age and chronological age. Variations can be as much as more than a year higher than chronological age, and up to 18 months younger than chronological age.^[555]

However, the documents before the Commission reveal that until July 2011 the wrist x-ray procedure was used by the AFP in many cases as the only means of assessing age.

Moreover, it appears that unwarranted assumptions about the extent to which a wrist x-ray could provide definitive evidence of age were drawn by officers of the Commonwealth. For example, in the talking points for the Prime Minister referred to above, the following point appears in respect of the wrist x-ray age determination process: ‘This involves a wrist X-ray conducted by an independent medical expert who then interprets the X-ray to determine the age of the person’.^[556]

As earlier noted, the practice of the AFP appears to have changed from July 2011. Documents provided to the Commission indicate that only one wrist x-ray was conducted in or after July 2011. As discussed above, the ‘improved age assessment process’ was announced in July 2011. While the Office of the CDPP continued to rely on wrist x-ray analysis as evidence of age where prosecutions had commenced, it appears that the practice of having wrist x-rays taken had essentially stopped at this time.

Even though it appears that wrist x-rays were no longer being taken at the time, the Commission has received documents from as late as November 2011 that show that the AFP may have considered that evidence of age adduced from the analysis of a wrist x-ray was necessary because it was a prescribed procedure. In an email to the Office of the CDPP, an AFP officer described the material relied on during an age determination hearing and included the following statement:

G&P method was imprecise but that there was no precise method available. The wrist X-ray is the method prescribed by the legislation and should be followed.^[557]

The Commission has been informed that no wrist x-rays have been taken since December 2011, when the new procedure commenced whereby DIAC conducts age assessment interviews and only refers to the AFP youn Indonesians that they assess as likely to be adults.^[558]

4.2 In many cases, a person was charged as an adult on the basis of wrist x-ray evidence alone

In a significant number of cases, an individual whose age was in doubt was arrested and charged as an adult where the only evidence of his age was based on his wrist x-ray. From documents provided to the Commission, it appears that every individual who, following a wrist x-ray, was assessed as being skeletally mature was charged as an adult – even if he continued to assert that he was under the age of 18 years and there was no other evidence suggesting that he was an adult.

It is clear from some transcripts of interviews between AFP officers and young Indonesians that many individuals were treated by the AFP as adults as soon as an x-ray report was received suggesting that they were skeletally mature.

For example, NTN032, who maintained he was a child, was interviewed without an adult or guardian present (although the presence of such a person is required under the Crimes Act for juvenile suspects) because the result of an x-ray indicated that he was 19 years old. The transcript of the interview included the following exchange:

Q1F/A [Federal Agent] [name]: ... What’s your date of birth, [NTN032]?

A1 THE INTERPRETER: 22^nd of September 1994.

Q2 Okay, So [how] old are you?

A2 THE INTERPRETER: Sixteen.

Q3 Do you remember having an X-ray on your wrist?

A3 THE INTERPRETER: I do not remember.

Q4 All right. The X-ray on your wrist says you’re 19.

A4 THE INTERPRETER: I don’t know. I don’t know.

Q5 Are you 19 years old?

A5 THE INTERPRETER: As far as I know, I am 16.

Q6 And why - why is it as far as you know, you’re 16?

A6 THE INTERPRETER: From my family.

Q7 F/A [name]: This date of birth makes him 15.

A7 THE INTERPRETER: I only know from my mother.

Q8 F/A [name]: Just-Just tell him.

F/A [name]: No, I won’t. Okay. [NTN032], our - our medical records or medical examination of your wrist indicates that you’re 19 years old. As a result of that, you will be treated as an adult and you’ll be interviewed as an adult. Do you understand that?

A8 THE INTERPRETER: All I know is from my mother. My mother has told me I’m 16.

Q9 So as I said, our records [indicate] you’re at least 19. You’ll be treated as an adult.

And then later in that same interview:

Q34 Are you over 18?

A34 THE INTERPRETER: As far as I know, I’m 16. And that’s what I’ve been advised from - whilst my mother was alive, she’s - she’s passed away, but whilst she was alive, she advised me that my age was 16. ...

Q37 F/A[name]: All right. As I’ve explained earlier, the medical results we’ve got back indicate that you’re over 18 years of age. So as a result, you will be treated and interviewed as an adult and charged as an adult, if appropriate. Do you understand what we’re saying?

A37 THE INTERPRETER: All I know is that I’m 16 and I got that from my mother.^[559]

A similar conversation took place with MAL011 who said that he was 15 years old:

Q42 Can you tell me your age please?

A42 THE INTERPRETER: Fifteen.

Q43 And your date of birth?

A43 THE INTERPRETER: 26-26,.2.199-1999. One-1995, sorry.

Q44 Previously did you go with people and have an X-ray taken of your wrist?

A44 THE INTERPRETER: Yes.

Q45 So for the purposes of this interview, the wrist X-ray I talk of suggested that [MAL011] was greater than 19 years of age and, as such, will be interviewed as an adult and not as a juvenile.^[560]

In another matter, an officer from the Office of the CDPP informed UPW031’s defence lawyer that the only evidence of age the Commonwealth intended to call at his age determination hearing was that of Dr V. Low .^[561] The defence lawyer then informed the CDPP officer that he intended to make submissions that the only investigation of age conducted by the Commonwealth was a wrist x-ray. He advised:

I am intending to make a submission to the effect that there was no other investigation undertaken by the prosecution concerning the age of the accused. There doesn’t need to be evidence to confirm that. The fact that no other evidence is offered [by the State] is sufficient to support that submission.^[562]

Many of those who were arrested and charged as adults based solely on wrist x-ray analysis ultimately had their prosecutions discontinued. In some of these cases, individuals spent very long periods of time in detention, including in adult correctional facilities.

For example, JDT046 had a wrist x-ray taken in April 2010. He was charged as an adult nine months later based on an analysis of that wrist x-ray alone. The prosecution was discontinued a further nine months later after the Office of the CDPP obtained expert evidence from an anthropologist who provided support for his original claim of being a child.^[563]

In another case, NTN031 had a wrist x-ray taken in January 2010. He was charged as an adult nine months later, in October 2010, based on a wrist x-ray analysis which stated he was ‘approximately 18.5 years’.^[564] By the time his prosecution was discontinued in November 2011, he had spent 690 days in detention, 412 of which were spent in an adult correctional facility.

In another matter, that of TIW044, there was no evidence other than a wrist x-ray to support the contention that he was an adult at the time he was charged. A DIAC focused age assessment interview found him to be under 18 years old. In an email to the Office of the CDPP, the AFP expressed their view that ‘the evidence available exceeds the balance of probabilities’ and ‘there does not appear to be any logical reason why the CDPP would drop this matter’. They stated:

if this matter was dropped by the CDPP it would create an extremely bad precedence (sic) for all current and future age issue matters and virtually indicate that the Commonwealth has not trust in the prescribed procedure (wrist x-ray) and that it is flawed.^[565]

By the time the decision was made to discontinue the prosecution, TIW044 had spent 486 days in detention, 309 of which were spent in an adult correctional facility.

4.3 In some cases, a person was convicted as an adult on the basis of wrist x-ray evidence alone

Some individuals have been convicted as adults in circumstances where the prosecution relied wholly or substantially on wrist x-ray analyses.

It appears that this was the case in respect of at least ten of the 15 individuals who the Attorney-General released on licence.^[566] Further, for two of the individuals who were released early on licence it appears that the only evidence of age adduced by the prosecution during their age determination hearings was wrist x-ray analyses.^[567]

One of these individuals, who was sentenced to five years imprisonment (with a three year non-parole period), maintained in April 2012 when speaking with Commission staff that he was under the age of 18 when he was apprehended.^[568] From the documents before the Commission it appears that the only evidence available to the Commonwealth to support the assessment that he and his co-accused were adults was based on their wrist x-rays. After the issue of their respective ages had been raised by defence counsel, a senior CDPP officer instructed the responsible Office of the CDPP lawyer to ‘rely on x-rays to prove age’ and not on information given by the individuals to the AFP during interviews.^[569] In these cases, which are discussed in Chapter 3, section 5.2, the question of age, having been raised by defence counsel, was not thereafter pursued. The Attorney-General released both of these individuals early on licence in June 2012.^[570]

Another example is DRU001 who was convicted as an adult of a people smuggling offence and sentenced to five years imprisonment. It is not clear that the Commonwealth had any evidence of his age other than evidence based on his wrist x-ray. The AFP noted that the individual’s date of birth was unknown and that they relied on the evidence of Dr V. Low with respect to his age.^[571]

4.4 Wrist x-ray procedures were used even where documentary evidence of age existed

In other cases, even where documentary evidence of the individual’s age was available, the AFP arranged for a wrist x-ray to be taken.

For example, BOM064, who was apprehended in June 2010, had in his possession a photograph identification document from Indonesia. This document gave his date of birth as 12 March 1995, indicating that he was 15 years old at the time of his apprehension.^[572] In September 2010, the AFP recorded a ‘critical decision’ not to prosecute him.^[573] However, in October 2010 a Federal Agent asked for a wrist x-ray to be performed as ‘juveniles undergo wrist x-rays as a matter of course’.^[574] An AFP case note recorded that they are waiting on the outcome of the wrist x-ray before a decision is made whether to withdraw BOM064’s CJSC and remove him to Indonesia.^[575] He was removed to Indonesia only after the wrist x-ray results were received. He spent 185 days in immigration detention in Australia.

It appears that in some cases, the Commonwealth preferred evidence of age based on wrist x-rays to documentary evidence of age. For example, a senior officer of Office of the CDPP requested all evidence of age in one particular matter. The case officer said that there was documentary evidence of age, but that it was a forged birth certificate. The senior officer of the CDPP replied to the effect that wrist x-ray evidence is ordinarily more reliable than documentary evidence of age, advising:

We do not rely upon Indonesian birth certificate[s], even if they are genuine, the provenance of the data and time of providing it is so late as to be unreliable. I am more interested in what our x-ray material and expert witnesses say as to age.^[576]

These issues are discussed further in Chapter 6.

4.5 Wrist x-ray evidence was preferred to the results of age assessment interviews

As discussed in detail in Chapter 5, in October 2010, DIAC conducted focused age assessment interviews with 27 individuals suspected of people smuggling whose ages were in doubt and concluded that 23 of them were likely to have been under the age of 18 at the time of their alleged offence.

An internal DIAC communication from September 2010 records that the AFP had indicated that they would not charge an individual whom DIAC assessed to be under 18 years of age but would rather request his removal to Indonesia.^[577] The documents provided to the Inquiry indicate that this is not what happened in practice.

Of the 23 individuals assessed by DIAC as likely to have been under the age of 18 at the time of their alleged offences, 11 had already had wrist x-rays taken prior to participating in the DIAC interview. In two of these cases the wrist x-ray analysis showed that the individual was not skeletally mature. They were both removed from Australia without charge after the DIAC interview. However, in the other nine cases the wrist x-ray analysis suggested that the individual was either over 19 years of age, or between 18 and 19 years of age. Every one of these nine individuals was charged as an adult despite DIAC’s finding that they were likely to have been under 18 years of age at the time of their alleged offences. In each case, the prosecution was ultimately discontinued.

The remaining 12 individuals each had a wrist x-ray taken, notwithstanding that DIAC’s age assessment interview had resulted in a conclusion that he was likely to have been under the age of 18 at the time of his alleged offence. Of these 12 individuals, five were found to be skeletally immature and removed from Australia without charge. Wrist x-ray analyses suggested that the remaining seven were either over 19 years of age, or between 18 and 19 years of age. Each of these seven individuals was charged as an adult despite DIAC’s finding that he was likely to have been under 18 years of age at the time of his alleged offence. In each case the prosecution was ultimately discontinued.

Clearly, despite the undertaking to remove from Australia those individuals assessed by DIAC as likely to be under the age of 18 years, the AFP was not, in practice, prepared to rely on DIAC’s assessment of an individual’s age, preferring wrist x-ray analysis as evidence of age. As a consequence, when the Commonwealth was faced with conflicting opinions on the age of an individual, he was not given the benefit of the doubt.

Some of these young Indonesians spent long periods of time in detention in Australia, as is shown in the following cases.

When JDT046 was apprehended in February 2010, he told authorities that he was born in August 1995. In April 2010, he underwent a wrist x-ray. When an expert report was prepared a year later, it stated that he was ‘probably 19 years or older at 8 April 2010 when the x-ray was taken’.^[578] A DIAC age assessment was conducted in October 2010 (with a formal report completed in February 2011) which concluded that he was under 18 years of age at that time.^[579] He was charged as an adult in December 2010 and was remanded in custody from that date. The prosecution was discontinued in August 2011 when the Office of the CDPP came to the view that there was some doubt about whether he was over the age of 18 years at the date of the offence.^[580] He spent 537 days in detention in Australia, 239 of them in an adult correctional facility.

Another individual, BOM062, was assessed by DIAC to be under 18 years of age in October 2010 (with a formal report completed in February 2011).^[581] He had a wrist x-ray taken in December 2010, six months after he arrived in Australia. The wrist x-ray analysis showed that he was skeletally mature.^[582] He was charged as an adult in March 2011.^[583] The prosecution was discontinued about six weeks later when the Office of the CDPP came to the view that the information available suggested that he was younger than 18 years when apprehended.^[584] He spent 332 days in detention in Australia, 43 of them in an adult correctional facility.

In another case, DIAC assessed TOW043 to be under 18 years of age in October 2010 (with a formal report completed in February 2011).^[585] His wrist was x-rayed in December 2010. The wrist x-ray analysis showed him to be skeletally mature. In March 2011, the AFP requested a copy of the DIAC Age Assessment Report before laying charges.^[586] In April 2011, after receiving the DIAC report, the AFP charged and arrested him as an adult.^[587] A second opinion on the wrist x-ray was then sought from Dr V. Low who stated that it was ‘a reasonable interpretation that [TOW043] is 19 years of age or older’.^[588] An age determination hearing was conducted in the Victorian Magistrate’s Court in December 2011. The magistrate was not satisfied on the balance of the probabilities that he was over 18 at the time of the offence and the prosecution was discontinued.^[589] He spent 510 days in detention in Australia, 64 of them in an adult correctional facility.

In the case of JAM074, in October 2010 an email from a DIAC investigator seconded to the AFP stated that ‘the AFP are keen to seek an age determination on [JAM074], so a decision can be made whether or not to proceed with a prosecution against him’.^[590] He was assessed by DIAC in October 2010 to be under 18 years of age (with a formal report completed in January 2011).^[591] Despite this assessment, his wrist was x-rayed in December 2010, with analysis finding that he was at least 19 years of age.^[592] The AFP charged him as an adult in March 2011.^[593] In April 2011, both the Office of the CDPP and the AFP were under the impression that no DIAC age determination assessment had been completed for him.^[594] This was despite the fact that in October 2010, a DIAC officer had confirmed with the AFP that an age determination interview took place but they were still awaiting the outcome of the report.^[595] The prosecution was discontinued in November 2011 as the Office of the CDPP had come to the view that they could not be confident that he was an adult at the time of committing the offence.^[596] He spent 516 days in detention in Australia.

4.6 Many cases were ultimately discontinued as there was no probative evidence other than wrist x-ray analysis

Documents before the Commission indicate that ultimately the Office of the CDPP came to the view that in cases where there was no probative evidence of age other than the wrist x-ray analysis, prosecutions should be discontinued.

The Commonwealth Director of Public Prosecutions has informed the Commission that this change in position was a response to the decisions in R v Daud and R v RMA. He reported that:

The CDPP’s changed position was that no people smuggling matter in which age was contested should be prosecuted where the sole probative evidence that the defendant was over 18 years at the time of the offending was the analysis of the wrist x-ray.^[597]

During an Inquiry hearing, a Senior Assistant Director of the Office of the CDPP said:

I think prior to October [2011], we had discontinued 14 matters where we had made assessments on the evidence available. After October, we discontinued a further 21 matters and they were matters which we identified where the wrist X-ray was evidence and that there wasn’t probative evidence otherwise. So we did react in that way of reviewing all the matters and making certain that we discontinued any matter which we had before the court.^[598]

From the information that the Commission has received regarding individual cases, it is evident that at least nine cases were discontinued in November 2011 and another 11 in December 2011. The CDPP has informed the Commission that 55 of the matters considered by this Inquiry were discontinued, including 22 matters that were discontinued prior to October 2011 without an age determination hearing having been conducted and a further 20 matters which were discontinued between October and December 2011 without an age determination hearing having been conducted.^[599]

However, it must be noted that by the time their prosecution was discontinued, some of these individuals had spent a very long period of time in detention, including in adult correctional facilities, when the only evidence of their age held by the Commonwealth was based on a wrist x-ray. In addition, it should be noted that the use of wrist x-ray analysis as evidence of age had been questioned by a court as early as 2002.^[600]

5 Individuals were charged and convicted as adults on the basis of wrist x-rays that were inconclusive

It appears from the documents before the Commission that individuals were charged as adults, and some were later convicted, in circumstances where the wrist x-ray analysis was inconclusive. In many of those cases, a second analysis of the wrist x-ray was sought and the Commonwealth relied on the second opinion to continue the prosecution against the individual.

As discussed in section 2 above, the report of the 2001 Senate Legal and Constitutional Legislation Committee inquiry into the Crimes Amendment (Age Determination) Bill (Cth), observed that the Australian Federal Police (AFP) ‘advised that it was prepared to treat all persons who were not clearly adults as if they were juvenile’.^[601] The Joint Commonwealth submission to this current Inquiry maintained that the Commonwealth continues to give individuals the benefit of the doubt.^[602]

This would require the Commonwealth to treat as a minor any individual about whom conflicting credible evidence of age exists. The principle of the benefit of the doubt means that wherever an initial x-ray report was inconclusive on the issue of whether the individual had reached skeletal maturity, unless there was good reason to question that report, the Commonwealth should have treated that individual as a minor. A second opinion should not have been sought.

However, the documents before the Commission suggest that, in some cases, officers of the AFP or the Office of the CDPP questioned the reliability of wrist x-ray analysis that did not conclusively report that an individual was 19 years of age or over and sought a second opinion from another radiologist, most often Dr V. Low .^[603]

As the cases described below demonstrate, the Commonwealth has charged as adults individuals whose wrist x-ray analyses were inconclusive as to whether they had attained skeletal maturity. This practice is directly contrary to the 2001 assurance given by the AFP, which is referred to above, that the benefit of the doubt would be given to individuals where wrist x-ray analysis did not show skeletal maturity.

5.1 Some individuals were charged as adults on the basis of wrist x-rays that did not show skeletal maturity

The Commission is aware of a number of cases in which individuals were charged as adults on the basis of wrist x-rays that did not show skeletal maturity. In many of these cases second opinions were sought, usually after an individual had been charged.

For example, TRA029 was apprehended in January 2010. He told authorities that he was born in 1995, making him almost 15 years old at the time of the alleged offence.^[604] His wrist x-ray was taken a short time later and the medical practitioner expressed the opinion that, on the basis of the wrist x-ray, he ‘is thought [to be] in the order of 18 to 19 years’.^[605] The Office of the CDPP officer requested that the AFP seek a second opinion stating:

I have encountered this situation a number of times before where Doctors have incorrectly (on my assessment, but also on the second opinion of Dr V. Low ) applied the Pyle and Greulich test, in the sense that their opinion has not been open at all (typically because the radial epiphysis still shows a line that has not completely faded and this incorrectly leads to a conclusion the person is at least 18 – 19, rather than at least 19, as prescribed in the text).

Could you please obtain the x-ray and a second opinion, ideally from Dr V. Low .

My view is that we would not have sufficient evidence to proceed against [TRA029] as an adult (on the balance of probabilities) based on the opinion of [medical practitioner] irrespective of the question of public interest. As [medical practitioner] has apparently expressed an opinion that is entirely consistent with the possibility the accused was underage at the time of offending, could you please attend to this as soon as reasonably practicable.^[606]

A second radiologist report was provided (by a doctor other than Dr V. Low ) and that report stated that it was a reasonable interpretation that he was above the age of 19 years.^[607] Some months later, when preparing for an age determination hearing, the Office of the CDPP sought an expert opinion from Dr V. Low . Dr V. Low provided a report expressing the opinion that he was probably 19 years or older when the x-ray was taken.^[608] The matter proceeded to an age determination hearing in the Magistrate’s Court of Western Australia. The magistrate found that it was ‘more probable than not that TRA029 was not aged 18 years or older’ at the time of the alleged offence.^[609] The prosecution was subsequently discontinued.^[610] He spent 621 days in detention in Australia, 341 of them in an adult correctional facility.

In another example, UPW031 was charged as an adult on the basis of a wrist x-ray report which expressed the opinion that his skeletal age was between 18 and 19 years.^[611] When the Office of the CDPP received the brief from the AFP, they questioned how they could prove he was 18 at the time of the offence on the basis of a wrist x-ray taken two months after the offence that stated that he was between 18 and 19 years old.^[612] The Office of the CDPP sought a second opinion from Dr V. Low , who stated that he showed a skeletal age of 19 years or greater.^[613] On receipt of the second report, the CDPP officer noted the conflicting opinions and favoured that given by Dr V. Low . In an email to an AFP officer he made the comment: ‘I knew my interpretation was better than [medical practitioner]’s’,^[614] and then in an email to a colleague from the Office of the CDPP:

On the face of the report of [medical practitioner], his opinion is inconsistent with Greulich and Pyle, and should be disregarded in favour of Dr V. Low ’s opinion.^[615]

The matter proceeded to an age determination hearing, following which the Judge was not satisfied that UPW031 was over 18 at the time of the alleged offence.^[616] The prosecution was discontinued and he was removed to Indonesia. He spent 731 days in detention in Australia, 641 of them in an adult correctional facility.

In another case, NTN031 challenged the reliability of wrist x-ray analysis. The manner in which he was questioned suggests not only that the interviewer was willing to be less than frank with him, but also that the interviewer held a degree of confidence in the precision of the technique that was inconsistent with any need to apply the benefit of the doubt. The transcript of the interview includes the following exchange:

F/A [Federal Agent] ...: Do you remember having [an] X-ray on your wrist?

THE INTERPRETER: Yes, I was X-rayed.

F/A ...:Yeah. They tell us you’re 19, over 19.

THE INTERPRETER: No, I was not told that. At the time I had my X-ray, I was told that my age was between 18 and 19, but I’m not over 19.

F/A ...: So – okay. So you were told between 18 and 19?

THE INTERPRETER: Yes

F/A ...: And you still say you’re 16, even though medical proof shows you’re over?

INTERPRETER: As soon as I found that out, I asked to be moved here.

F/A: So you asked to be moved to where?

INTERPRETER: Moved to the place with the adults.

F/A ...: All right. So it’s possible that you’re over 18?

THE INTERPRETER: No. My date of birth is correct.

F/A ...: Can you explain why there’s a difference between what you say your age is and what medical evidence says your age is?

THE INTERPRETER: If that equipment that you’re talking about, how can that know my date of birth? If it’s going to know my date of birth, tell me then, does it also know my date of death?

F/A ...: It works on bone development. So it can tell how old a person is based on the development of bones.

THE INTERPRETER: Therefore that equipment or that item that you’re talking about should tell me when I’m going to die.

F/A ...: No. Different things affect how you live: how much you eat, what you eat, whether you exercise, don’t exercise. So that will tell – those will influence when you die, not a machine. The machine ...

THE INTERPRETER: Yeah, but how can it know that I’m between 18 and 19?

F/A ...: A doctor examines the X-ray and with his specialist knowledge of bone development in the wrist, the doctor determines how old you are as a result of reviewing your X-rays. It is the doctor who has said that you are over 19 years of age.

THE INTERPRETER: Can that doctor tell me my date of birth? My year of birth? Can he do that?

F/A ...: The doctor only looks at the X-ray. He examines the X-ray and determines your age according to that X-ray.

THE INTERPRETER: The problem is if this so-called doctor, he can determine, but he doesn’t know for sure. Now, he’s saying for example, that I’m between 18 and 19. He still doesn’t know for sure.^[617]

Following this interview, NTN031 was charged as an adult. In April 2011 an internal email of the Office of the CDPP records that the initial x-ray analysis showed that he was 18.5 years old and considered that the benefit of the doubt may need to be given and that consideration should be given to discontinuing the prosecution.^[618] Instead, a second medical expert opinion was sought that reported that the x-ray showed skeletal maturity.^[619] The prosecution was finally discontinued in November 2011 when the Office of the CDPP came to the view that they would not be able to prove that he was over the age of 18 years at the time of the alleged offence, largely because the two radiologists who had interpreted his wrist x-ray came to different conclusions.^[620] He spent 690 days in detention in Australia, 412 of them in an adult correctional facility.

In a further matter, VMT011 was charged as an adult on the basis of a wrist x-ray report that was inconclusive about whether he had achieved skeletal maturity. The initial x-ray report, obtained on 15 January 2010, expressed the opinion that he was at least between 18 and 19 years old.^[621] A legal officer from the Office of the CDPP noted that the benefit of the doubt would need to be given based on that report alone and asked the AFP to seek a second report from Dr V. Low . The legal officer stated that ‘it seems possible that [the initial doctor] is being conservative, and a finding that [VMT011] is 19 or over is more applicable’.^[622] However, before the second report was received, he was charged as an adult.

In April 2011, over a year after VMT011 had been charged as an adult, a second report was received from Dr V. Low . The report states that the x-ray reveals skeletal maturity and that it is a reasonable interpretation that he is 19 years of age or older.^[623] He then conceded age and was charged and convicted as an adult.^[624] He was sentenced to a mandatory minimum sentence of five years imprisonment, with a non-parole period of three years. The Attorney-General released him early on licence in June 2012.

In a final example, PEN060 told DIAC and AFP officers, when he was apprehended on 31 December 2009, that he was born in 1997 and was 12 years old.^[625] He later told police that he was born in 1992 and was actually 17 years old at the time of his alleged offence.^[626] He subsequently underwent a wrist x-ray, the report of which concluded that his skeletal age was 18.5 years.^[627] He was then charged as an adult. He maintained that he was a juvenile. The Office of the CDPP sought a second opinion about his age from Dr V. Low in March 2011. Dr V. Low ’s report stated:

Examination of the bones of the hand of [name] as derived from the radiograph taken reveals a status close to maturity. A segment of growth plate remains unfused along one margin of the radius. The process of fusion at this site occurs during the age of 18 years. Since the process is quite well advanced, but not yet complete, it is [a] reasonable interpretation that [name] is about 18½ years of age.^[628]

The prosecution of PEN060 was discontinued about three weeks after the Office of the CDPP received the report from Dr V. Low and over a year after the initial x-ray report had been obtained. In an internal email discussing the reasons for discontinuing the prosecution, the Office of the CDPP notes that the AFP policy is not to charge an individual whose skeletal age is not at least 19 years and, accordingly, the benefit of the doubt should be given to the individual. The email states:

The reasons for discontinuance are that the accused has raised the issue of his age and claims to be a juvenile, that is a person under the age of 18 years of age. The Australian Federal police aware of the claim had undertaken a prescribed procedure as to age, being a wrist x-ray procedure in accordance with the Crimes Act 1914 (Cwth) and the Crimes Regulations (Cwlth). The expert evidence on the issue placed the age of the person at 18.5 years. The AFP policy is that they will not refer for prosecutions persons under the age of 19 years of age, where the age is determined by wrist x-ray procedure alone. The AFP has previously assured Parliament (The Senate Constitutional and Legal Committee) that where the age was an issue that anyone under 19 years of age would be given the benefit of the doubt. I have considered the evidence in this particular matter and the Prosecution Policy of the Commonwealth. Whilst I cannot determine on the evidence that the accused is a person under the age of 18 years and cannot therefore consider him to be a juvenile, I am satisfied that in this case the accused is entitled to the benefit of the doubt as to his being between 18 years and 19 years of age, and accordingly the prosecution ought to be discontinued.^[629]

Since AFP policy was not to proceed to charge where a wrist x-ray did not show skeletal maturity, then it is of concern that PEN060 was ever charged and that a second opinion as to his age was sought 15 months after his apprehension. He spent 479 days in detention in Australia, 201 of them in an adult correctional facility.

5.2 Some individuals were convicted as adults on the basis of wrist x-ray evidence that was inconclusive

The Commission is aware of at least two cases where the wrist x-ray of a young Indonesian did not show skeletal maturity but he was nonetheless charged and ultimately convicted as an adult.

The first example is WAK089 who, when apprehended in September 2009, told authorities he was 17 years old.^[630] He subsequently underwent a wrist x-ray for the purpose of determining his age. The wrist x-ray report stated that:

Examination of the bones of the hand of [WAK089] as derived from the radiograph taken reveals a status close to maturity. A very short segment of growth plate remains unfused along the outside margin of the radius. The process of fusion at this site occurs during the age of 18 years. Since the process is quite well advanced, but not yet complete, it is a reasonable interpretation that [WAK089] is about 18½ years of age.^[631]

He was arrested and charged on the same day that the report was written and remanded in adult custody.^[632] In a brief to counsel, the CDPP officer notes:

X-rays performed prior to their arrest indicate that ... [WAK089] ... is 18 ½. I note that neither accused has raised issue of age to date in the proceedings. Therefore, for the purposes of criminal proceedings against them, [WAK089] and [WAK087] are to be treated as adults.^[633]

No other evidence of age was obtained by the Commonwealth. He was convicted as an adult and sentenced to a mandatory minimum sentence of five years imprisonment, with a non-parole period of three years. The Attorney-General released him early on licence in June 2012.

The second example is EAS054 who told the AFP that he was born in 1996; this would have made him 13 years old at the time of his alleged offence.^[634] He underwent a wrist x-ray and the x-ray report expressed the opinion that he was at least between 18 and 19 years of age at the time of the x-ray being taken.^[635] The CDPP officer wrote to the AFP and asked that the AFP seek a second opinion saying:

I also note that the wrist x-ray for [name] states that he is at least between 18 to 19. ie 40 days earlier at the time of the offence he could be 17. [Medical practitioner] seems to consistently observe bone formation that should correspond to a finding of at least 19 years old. Could you please obtain the x-rays and get a second opinion from Dr V. Low here in Perth.^[636]

The documents before the Commission do not make clear whether Dr V. Low provided a formal second opinion. The AFP emailed the Office of the CDPP to say:

[Dr V. Low ] states clearly that the report is what it is: meaning that the Dr in Darwin is reporting that (quote) ‘at the time of the x ray, the person is at least 18 years old’. He further explained that is all an x-ray can provide for. That is, they cannot then say how much older than 18 anyone actually is. ... In any case, the x-ray states that he’s over 18. AFP thoughts are that this prosecution should go ahead.^[637]

He entered a plea of guilty and was sentenced as an adult to a mandatory minimum term of imprisonment of five years. EAS054 was one of those whose conviction was reviewed by the Attorney-General in May 2012. On 18 May 2012, he was released early on licence and he was returned to Indonesia shortly thereafter.^[638] He spent 891 days in detention in Australia, 806 of them in an adult correctional facility.

6 Some individuals conceded age when presented with wrist x-ray evidence

From the documents before the Commission, it appears that in some cases individuals may have conceded the issue of their age when presented with wrist x-ray analysis by the Commonwealth. As discussed in section 2 above, and in Chapter 6, in many cases young Indonesians do not know their actual age.

Documents before the Commission indicate that AFP officers frequently told individuals suspected of people smuggling that wrist x-ray analysis is an accurate means of assessing age and that their stated age was incorrect. In some cases, an individual who had previously said that he was a child accepted the result of the wrist x-ray analysis. For example, in one interview with the AFP, EAS056, who had previously told the AFP that he was 16 years old, was asked whether he was over 18 years of age. He replied ‘Yeah, it is according to the x-ray’.^[639] The issue of age was raised again later in that same interview. The transcript of the interview reads:

Q121 Okay. Were you told to say that you were under the age of eighteen by anyone?

A121 THE INTERPRETER: No.

[EAS056]: No

THE INTERPRETER: (Speaking on behalf of the interviewee) Oh, can I ask a question? I said my age but according to you, what is my age?

Q122 All the x-ray can tell us is that you over the age of nineteen.

A122 [EAS056]: Yeah.

He later pleaded guilty. During sentencing submissions his defence lawyer said that the individual was ‘not in a position to tell ... his exact age, but we estimate roughly between early 20s and mid-20s’.^[640]

It appears that in some cases a young Indonesian continued to believe that he was aged under 18, but may have been confused by the difference between his stated age and the age provided in the wrist x-ray report. For example, one transcript of interview records the following exchange:

Q57 All right. Are you over the age of eighteen?

A57 Sorry, if that is the situation I accept that, but my real age is given to me by my parents.

Q58 Mm, and what age —

A58 My parents told me I am such and such an age, so I will go along with that age.

Q59 And how old did your parents say?

A59 I don’t know what age I am, whatever, but my parents gave me the age I have.

Q60 And what age do you think you are?

A60 I don’t know. So, I don’t know what age I am because my parents told me my age, my parents gave birth to me so I followed through with the age that they told me.

Q61 Mm, and what age did your parents say that you are?

A61 Fifteen.

Q62 Fifteen, okay. And do you agree that yesterday you went and had some X-rays done of your wrist?

A62 Yes.

Q63 Okay, and that as a result of those X-rays, we have now informed you, the doctor has looked at the X-rays?

A63 (No audible reply)

Q64 Okay, and those X-rays indicate that you are over the age of eighteen.

A64 I understand that. So, that’s - I don’t know what age I am but that is the age that was given to me by my parents.

Q65 Yes, that’s fine. That’s okay.

A65 But now I feel as though I have sinned because my parents gave me – so, you know, they have said to me that my age is – and I followed with that.

Q66 Yes, you are only doing what you believe, it is not a sin.^[641]

In the transcript of an interview between another young Indonesian and the AFP, again with no independent adult present, DRL038 is apparently surprised that he has been charged as an adult. The transcript records the following exchange:

Q3. You previously stated to me that you are the age of sixteen. Is that correct?

A. That’s right.

Q4. And I explained to you that since you underwent the [wrist] x-ray, we have reason to believe that you are over the age of eighteen. ... I am now placing you under arrest for this offence. ...

Q8. Can you tell me in your own words your understanding of this caution?

A. THE INTERPRETER (Answering on behalf of interviewee): My understanding – I’m still surprised about my, my age. ...

Q21. Are you over the age of eighteen?

A. No.^[642]

In another matter, DER026 continued to assert that his correct date of birth was that given by his parents and not the wrist x-ray analysis. The transcript of his interview includes the following exchange:

Q98 Are you over the age of eighteen?

A98 THE INTERPRETER: Because yesterday I was in the hospital and then they checked my age. So it’s up to them. According to my parents I was aged that time, that age I was told.

Q99 Are you over eighteen years old?

A99 THE INTERPRETER: It’s up to you, if you want to say I am over eighteen, yes. So it’s up to you.

Q100 How old do you think you are?

A100 THE INTERPRETER: I don’t think of anything because my parents give me I was sixteen years old.

Q101 Okay. Do you agree that yesterday you were taken to the hospital in Darwin for a wrist x-ray?

A101 THE INTERPRETER: Yes.

Q102 The results of that wrist x-ray indicate that you have attained the age of nineteen years.

A102 THE INTERPRETER: That’s okay, whatever.

Q103 You understand that, what happened yesterday?

A103 THE INTERPRETER: Yes, I do understand.

Q113 What is your date of birth?

A113 THE INTERPRETER: I don’t know.

Q114 Yesterday you stated your date of birth was the third of March, nineteen ninety-three. Is that true?

A114 THE INTERPRETER: That’s correct.

Q115 Is that your true date of birth?

A115 THE INTERPRETER: That’s my true date of birth.

Q116 Do you have any documentation which can prove that’s your date of birth?

A116 THE INTERPRETER: Yeah, I have my birth certificate, but that’s not here, it’s in Indonesia.

Q117 Do you understand that the date of birth you have given me, makes you sixteen years old?

A117 THE INTERPRETER: Yes.

Q118 Do you also understand that two doctors yesterday stated that you were at least nineteen years old?

A118 THE INTERPRETER: Yeah, I do understand.

Q119 Can you explain the discrepancy between your stated date of birth, and your apparent real age?

A119 THE INTERPRETER: I know that’s my, my date of birth. But yesterday they test me, so if they think I’m eighteen, it’s up to them, what they want to say.

Q120 What do you say, [name]?

A120 THE INTERPRETER: It’s up to you.^[643]

In yet another case, that of INN012, a psychological assessment reports his describing what it was like to be told that the wrist x-ray had determined he was over 19 years of age when he did not believe that to be true. The report of the assessment records:

[INN012] stated that he was afraid during the interview with the Police. When asked why he initially said he was 15 years old and later said he was 19 years old, [INN012] reported that “they asked me so many questions ... I was confused ... they told me according to a wrist X-Ray my age should be 19 and I’m afraid to go against that ... but the lady who raised me said my age was 15 and how could I not believe her ... I am confused about the X-Ray”. He added that “in that interview I said the wrong thing in my heart”. It seems that [INN012] agreed with the suggestion that he was 19 years old, because he did not want to contradict the Police Officer and get himself in more trouble. He repeated several times that he was told that he was 15 last year, by his aunt, and seemed confused as to why she would tell him incorrect information.^[644]

The Commission is also aware of cases where individuals were advised to plead guilty by defence lawyers following their consideration of the results of wrist x-ray analysis.

For example, a person named Syam was convicted and sentenced for people smuggling on 9 June 2011 in the Queensland District Court.^[645] He continues to maintain that he was under 18 years of age at the time of the offence.^[646] Syam says that he was advised by his lawyer to plead guilty to the offence with which he was charged. He has signed an affidavit which includes the following paragraphs:

28. On 12 April 2010 at Darwin Australia, a person unknown to me took an x-ray of my wrist without me understanding what was going on or why.

29. On 1 July 2010 at Darwin Detention Centre, I was questioned by the Australian Federal Police. In answer to their questions, I told them that I was not over the age of 18 years. I repeated my date of birth as 1 March 1995.

30. On 1 October 2010 I was charged and transported to a maximum security prison at the Arthur Gorrie Correctional Centre Brisbane, Queensland, Australia and held with adult prisoners. ...

35. I told [my] lawyer that I was under 18 years of age. I gave the lawyer the telephone number of my older brother, [name redacted] who has a cell telephone, and asked the lawyer to call [name redacted] to confirm my age as being under 18 years. The lawyer wrote down the telephone number in the file.

36. After I was sentenced I was able to speak to [name redacted] on the telephone, who said he had not received any telephone call from [my lawyer] or any one else concerning my age or this matter. There is nothing in [my lawyer’s] file to show that they had tried to contact [name redacted] as instructed.

37. No one from the Australian Government, Customs, the Department of Immigration and Citizenship, the Australian Federal Police, the Commonwealth Director of Public Prosecutions, or [my lawyer]:

a) contacted my mother or any other member of my family to tell them I was under detention, had been charged, or detained in Australia on a very serious criminal offence facing mandatory imprisonment;

b) tried to obtain independent evidence of my birth from Indonesia or a birth certificate. ...

39. [My lawyer] advised me that:

a) medical evidence from a wrist x-ray showed that I was 19 years of age;

b) I was lying about my age and knowledge of the offence;

c) the wrist x-ray showed I was 19 years and that if it showed that I lied in Court, I would be sentenced to 7 years actual imprisonment;

d) if I pleaded guilty, I would only receive 3 years imprisonment and would avoid the risk of a 5 year sentence. ...

44. On 9 June 2011, I pleaded guilty, and my age was given to the judge as “approximately 19 years of age”, because ...

(h) I knew I was under 18 year of age but was being told that I was 19 years of age;

(i) I did not understand the meaning of the x-ray, or how it could prove I was lying about my age;

(j) the legal issues were very complex and beyond my understanding;

(k) I did not want to go to a juvenile gaol, where I would not be with my fellow Indonesian prisoners who were my friends and where I am unable to smoke cigarettes;

(l) I was advised by [my lawyer] to plead guilty.^[647]

The Attorney-General released Syam early on licence in June 2012.

In another example, that of QUE051, the defence lawyer raised age during his submissions on sentencing in the District Court of Western Australia. He said that the defendant had conceded age once presented with the wrist x-ray evidence and stated:

We know from the medical report prepared by Dr V. Low , I think it was, that this man is of an age of somewhere a little bit more than 19 years. The Crown submits in their submission that I’ve quickly looked at that [he] lied in his video about this matter, but the position is and I’ve discussed this with him, he has a fervent belief that was his date of birth, the 14^th of April 1994.

It’s not surprising, he comes from a very small village and that is the date of birth that he believed it to be and that is what he said. However, having put the medical report to him during the course of this trial [he] has conceded that the medical report is the medical report and does not challenge it. But it’s not so much that he lied. It’s a situation, from the instruction that I have from him, that he had a fervent belief that was his date of birth.

WISBEY DCJ: It’s unusual isn’t it? You can get people such as Indigenous people in the North of this State who don’t know how old they are.

[DEFENCE LAWYER]: You do.

WISBEY DCJ: But it is unusual to have someone who stipulates a precise date of birth that happens to be wrong.

[DEFENCE LAWYER]: Look, I accept, I do accept that, but I merely put it that I did discuss that matter with him and that’s what he instructed me.^[648]

These examples suggest that in some circumstances the Commonwealth presented wrist x-ray analysis as determinative of the issue of age to young Indonesians whose age was in doubt; and in some cases individuals’ legal representatives accepted the medical evidence as determinative and accordingly advised their clients to plead guilty. It appears likely that in some cases the individual did not raise the issue of their age again, or pleaded guilty, thereby conceding their age, after receiving the results of the wrist x-ray because they were under the mistaken belief that those results were accurate and conclusive.

7 Consent for a wrist x-ray to be taken was frequently not validly obtained

The requirement that consent be given prior to a medical procedure being carried out is underpinned by the principle of bodily integrity.^[649] An individual has a right to choose what happens to his or her own body.^[650] It is a fundamental rule of domestic law, an international human rights principle and a requirement for those working in the medical profession that informed consent must be obtained before there is any interference with a person’s bodily integrity.

Where a child is unable to consent to medical treatment, for example because of immaturity or illness, a parent or guardian is generally able to consent on behalf of the child.^[651] When a parent does provide consent to a medical procedure for their child, they must do so in the best interests of their child. The High Court of Australia has observed:

Ordinarily a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child. Implicit in parental consent is understood to be the determination of what is best for the welfare of the child.^[652]

Informed consent was an important element of the 2001 amendments to the Crimes Act which introduced the requirements governing the conduct of prescribed procedures for age assessment purposes. The Second Reading Speech for the Crimes Amendment (Age Determination) Bill 2001 states:

The Bill is predicated on informed consent – use of the prescribed equipment for investigation and related purposes will only be permitted where the informed written consent of both the detained person and an appropriate independent adult has been obtained; or by order of a magistrate.^[653]

In this section consideration is given, first, to the law and to accepted practice concerning the obtaining of consent where a medical procedure, whether conducted for forensic or therapeutic purposes, is to be carried out on a child. It considers:

• consent requirements for the conduct of medical procedures generally
• consent requirements for prescribed procedures conducted under the Crimes Act
• consent requirements for other forensic procedures conducted under the Crimes Act
• how consent was obtained in reliance on the Crimes Act to conduct wrist x-rays of young Indonesians.

Second, this section considers the extent to which the requirements for informed consent under the Crimes Act were complied with in relation to age determination procedures for young Indonesians. In particular, it examines:

• whether the independent adult understood that they were required to act in the best interests of the young Indonesian
• whether the independent adult was provided with the information required by the Crimes Act
• whether the consent of an independent adult was obtained in all cases
• whether a recording of the consent was made in all cases as required by the Crimes Act.

This section concludes that in many cases, consent for a wrist x-ray to be taken was not validly obtained.

7.1 Consent requirements for the conduct of medical procedures generally

Informed consent is a fundamental principle of sound medical practice. The National Health and Medical Research Council (NHMRC) General Guidelines for Medical Practitioners on Providing Information to Patients contain guidelines to ensure good medical practice concerning doctor-patient communication and to reflect the principle that patients are able to make their own decisions about medical treatment, including whether to grant or withhold consent to treatment.^[654] Furthermore, consent is required in order to avoid a medical procedure constituting an assault.^[655]

The NHMRC guidelines emphasise the importance of consent to medical treatment being fully informed, stating:

patients are entitled to make their own decisions about medical treatments or procedures and should be given adequate information on which to base those decisions. Information should be provided in a form and manner which helps patients understand the problem and treatment options available, and which are appropriate to the patient’s circumstances, personality, expectations, fears, beliefs, values and cultural background.^[656]

The guidelines also set out the kinds of information and advice a doctor should normally give to a patient who is asked to consent to treatment. They indicate that the topics doctors should normally discuss with their patients include:

• whether the proposed approach is conventional or experimental
• the degree of uncertainty about any diagnosis arrived at
• the expected benefits of the proposed treatment.^[657]

They further indicate that interventions where the patient has no illness require a doctor to provide more information.^[658]

The medical experts who participated in the Inquiry hearing agreed that if a medical procedure were being carried out for research purposes or in a clinical situation, it would be important to explain to the patient the degree of uncertainty of any diagnosis reached and the differences in medical opinion about how useful the information obtained is.^[659]

Two of the Australian medical experts who participated in the Inquiry hearing were of the opinion that sound medical practice requires there to be an engaged adult of some kind who can bring a judgment to bear independently of the child with respect to the reasons for, and the risks and benefits of, a particular medical procedure.^[660] It was suggested that consent to medical treatment could only validly be given by a child’s parent or legal guardian and could not be given by ‘anybody who happens to be with the child on that day’.^[661]

7.2 Consent requirements for prescribed procedures conducted under the Crimes Act

The Crimes Act provides that an investigating official may only arrange to carry out a prescribed age determination procedure if the appropriate consents have been obtained or, alternatively, by order of a magistrate.^[662]

Section 3ZQC of the Crimes Act requires the written consent of two individuals; the person whose age needs to be determined and either their parent or guardian or an acceptable independent adult person who is capable of representing their interests.^[663] The Explanatory Memorandum to the Bill introducing the requirements governing the conduct of prescribed procedures makes clear that it was envisaged that the independent adult could be a senior government official who is not connected with the investigation.^[664]

The Crimes Act sets out a number of other requirements that must be met for consent to be validly obtained under the Act.

First, the consent of both the person whose age needs to be determined and the independent adult must be informed consent.^[665] The Crimes Act requires that an investigating officer must inform them both of a number of things, including:

• the purpose of, and reasons for, the procedure
• the nature of the procedure and the equipment involved
• known health risks associated with the procedure
• that the information obtained from carrying out the procedure could affect the manner of dealing with the person
• that the person undergoing the procedure may have, so far as is reasonably practicable, a person of their choice present while it is carried out.^[666]

This information must be provided in a language in which the person whose age needs to be determined is able to communicate with reasonable fluency.

The investigating official must, if practicable, ensure that the giving of the information about the prescribed procedure and the responses (if any) of the persons to whom the information is given are recorded by audio tape, video tape or other electronic means. A copy of that record must be given to the person on whom the procedure is to be carried out.^[667] If it is not practicable to make an electronic record, the investigating official must make a written record of the giving of information and of the responses, and a copy of that record must be given to the person.^[668]

7.3 Consent requirements for forensic procedures conducted under the Crimes Act

The consent requirements for age determination procedures are less stringent than those for other forensic procedures under the Crimes Act. This was drawn to the attention of the Senate Committee in 2001. The Senate Committee report observed that there was no obvious reason for the protections afforded in relation to other forensic procedures not to be afforded when age determination procedures are undertaken.^[669]

For example, a child cannot consent to any other forensic procedure under the Crimes Act.^[670] Generally, a forensic procedure may only be carried out on a child by order of a magistrate.^[671] The exception to that rule is that a parent or guardian may volunteer on the child’s behalf that the child undergoes a forensic procedure.^[672] Where a parent or guardian does volunteer that their child undergoes a forensic procedure, the parent or guardian must be informed:

• of the details of the procedure^[673]
• that they are not obliged to consent to the procedure^[674]
• that the procedure may produce evidence to be used in a court of law^[675]
• of their right to contact a legal practitioner^[676]
• of their right to withdraw consent at any time.^[677]

Additionally, the child must be informed that the procedure will not be carried out over their objection.^[678]

The consent of a parent or guardian to a forensic procedure under the Crimes Act may be withdrawn at any time, including after the procedure has been carried out.^[679] If a parent or guardian withdraws consent after the procedure has been completed, the forensic material obtained from the procedure must be destroyed as soon as practicable.^[680]

Where the consent of a parent or guardian cannot reasonably be obtained, a magistrate may order the carrying out of a forensic procedure on a child.^[681] A magistrate must consider a range of factors in deciding whether to order a forensic procedure be carried out on a child, including:

• the seriousness of the circumstances surrounding the commission of the offence
• the best interests of the child
• any wishes expressed by the parent or guardian of the child
• whether the procedure is justified
• the wishes of the child.^[682]

The differences between the consent requirements for age determination procedures and those required for forensic procedures under the Crimes Act may be summarised as follows:

• The provisions relating to forensic procedures place a greater emphasis on fully informing child suspects and their parents or guardians of their rights before obtaining consent than the provisions relating to age determination procedures.
• Only a parent or guardian, and not any other independent adult, may consent to the carrying out of another forensic procedure. Where the parent or guardian is not reasonably available, an application must be made to a magistrate to order the carrying out of the forensic procedure.
• A magistrate must have regard to a more extensive list of enumerated matters when making an order to carry out another forensic procedure on a child suspect than when making an order to carry out an age determination procedure.
• The parent or guardian of a child suspect may withdraw their consent to another forensic procedure at any time, including after the procedure is completed, at which time the forensic material must be destroyed. There is no such provision for age determination materials.

7.4 How consent was obtained from people smuggling suspects whose age in doubt

(a) The consent of the individual

Documents provided to the Commission show that consent for the conduct of a wrist x-ray has generally been obtained from young Indonesians at an interview conducted by AFP officers. This interview is generally attended by two AFP officers, an independent adult and an interpreter.

People smuggling suspects who have been asked to consent to a wrist x-ray being taken have generally been offered access to legal assistance prior to a formal request for consent being made. Documents provided to the Commission indicate that this assistance is usually obtained, if at all, by telephone from the local legal aid office. In most cases a young Indonesian who has spoken to a lawyer agrees to give consent to the procedure being undertaken.

The AFP has provided the Commission with a standard statement of information provided to individuals prior to consent for the wrist x-ray procedure being obtained. As discussed below, this statement of information was altered in mid-2011.

Documents provided to the Commission indicate that it was common for the young Indonesian to be provided with a copy of the standard statement of information translated into Bahasa Indonesia and asked whether they understood it.

When a young Indonesian agreed to give consent, he signed a form which was witnessed and retained by the AFP.

(b) The consent of an independent adult

As discussed in Chapter 7, the individuals whose treatment is the subject of this Inquiry ordinarily do not have a legal guardian in Australia.

Consent of an independent adult for the conduct of a wrist x-ray, as required by the Crimes Act, has generally been given by an independent observer engaged by DIAC. It is DIAC policy that an independent observer be present whenever DIAC, or another Australian Government agency, interviews an unaccompanied minor in immigration detention.^[683]

The non-government organisation, Life Without Barriers,^[684] is contracted by DIAC to provide independent observer services for unaccompanied minors in immigration detention. In most cases, a representative from this organisation acts as the independent adult for the purposes of providing ‘consent’ to a prescribed procedure conducted under the Crimes Act.^[685] The limited responsibilities of an individual engaged by Life Without Barriers under its contract with DIAC are discussed in section 7.5(b) below.

(c) Recording consent

As mentioned above, the Crimes Act requires that, where practicable, an electronic record of the giving of consent must be made. From the material provided to the Inquiry it appears that electronic recordings of the interviews in which consent was given were made in a significant number of cases but not in all cases.

7.5 Consent for a wrist x-ray to be taken was frequently not validly obtained

The Commission has concerns about the extent to which the requirements for informed consent under the Crimes Act were complied with in relation to age determination procedures for young Indonesians.

(a) Information provided to individuals from whom consent was sought was misleading

Until mid-2011, misleading information was provided to individuals from whom consent was sought.

As noted above, the AFP provided the Inquiry with a copy of a standard statement of information provided to individuals prior to consent for the wrist x-ray procedure. Until mid-2011, that statement included the following information:

The purpose and reasons for carrying out this procedure is to accurately determine your age based on the expert examination of an x-ray of your wrist.^[686]

In February 2011, the Commission President wrote to the then Attorney-General advising that, in her opinion, consent to carry out a wrist x-ray cannot be characterised as informed consent unless the person is aware of the unreliability of the wrist x-ray procedure for the purpose for which it is used.^[687]

Subsequently, a Senior Assistant Director of the Office of the CDPP wrote to the AFP advising that the standard statement of information should be revised to make clear that the wrist x-ray can only provide a probable estimation of a person’s age. The Senior Assistant Director expressed concern that the consent statement also appeared to indicate that the wrist x-ray would be determinative of age, when the official policy was to take a number of factors, including the result of the wrist x-ray, into account when determining age.^[688]

On 19 August 2011 the AFP issued an Aide Memoire with an updated version of the statement of information to be provided to individuals before obtaining consent for the wrist x-ray procedure. The updated statement includes the following information:

The purpose and reason for carrying out this procedure is to assist in determining your age based on the expert examination of an x-ray of your wrist. ... The wrist x-ray may only provide a probable estimation of a person’s age. Multiple factors may be considered in seeking to determine your age.^[689]

At the Inquiry hearing for Commonwealth agencies, the AFP gave evidence that while the process to change the form had begun earlier, the changes were not formalised in writing until 19 August 2011.^[690]

(b) The independent adult did not act in the interests of individuals whose age was uncertain

Section 3ZQC of the Crimes Act requires that the independent person who provides consent is a person who is capable of representing the interests of the person in respect of whom it is sought to carry out the procedure. This would ordinarily be understood to mean that the independent person should be a person who understands that they should turn their mind to whether the procedure is in the interests of the person on whom it is proposed to be carried out. This would require the provision of adequate information to them to enable them to make that assessment.

Such a reading of s 3ZQC would be consistent with the requirement that legislative provisions be interpreted in a manner that ensures, as far as possible, that they are consistent with Australia’s international human rights obligations.^[691] It would also be consistent with the language of the Senate Second Reading Speech for the Crimes Amendment (Age Determination) Bill 2001 during which the Special Minister of State said:

This Bill is predicated on informed consent – use of the prescribed equipment ... will only be permitted where the informed written consent of both the detained person and an appropriate independent adult has been obtained; or by order of a magistrate.^[692]

The role assigned by DIAC to an independent observer retained by Life Without Barriers is:

to act in the best interests of unaccompanied minors and ensure that the Department’s and other agencies’ treatment of unaccompanied minors during certain immigration detention processes is fair, appropriate and reasonable.^[693]

DIAC materials show that the independent observer provides a service ‘to ensure [the minor’s] physical and emotional wellbeing’.^[694] The independent observer has no casework, legal advocacy or investigative responsibilities.^[695] During processes such as interviews with the AFP, an independent observer is required to provide pastoral or physical care of the child throughout the interview process. More specifically, the contractual role of the independent observer during interviews is:

• To observe the interaction between the interpreter and the child or young person, and advise the interviewer of any concerns.
• To observe the conduct of the interview/examination/assessment and the demeanour and presentation of the child or young person; and to draw to the attention of the interviewer any concerns about the emotional and physical state of the child or young person.
• To provide a reassuring and friendly presence for the child or young person.
• To ensure each process is adequately explained and understood by the child or young person.
• To be attentive to non-verbal cues of the young person that indicates a need to take a break.
• To be attentive to signs that the young person may benefit from trauma counselling and provide this advice to DIAC.^[696]

On 11 March 2011, DIAC provided clear advice to AGD about the limited role persons engaged by Life Without Barriers were obliged to perform. The DIAC officer stated in an email:

The policy documents also make clear that independent observers are not required to actively engage in immigration and other processes, and that they are instead passive observers within the process.^[697]

The email goes on to advise that there is no contractual obligation for the Life Without Barriers independent observer to take an active role in AFP processes and notes that the identification of an appropriate independent adult in the context of age determination is a matter that should be discussed and considered further.

One week later, AGD received advice from the AFP that the Crimes Act requires Life Without Barriers to play an active role in either signing the consent form or in refusing to give consent. The AFP officer informed an AGD officer that she understood that the Life Without Barriers representatives took their role seriously.^[698] The critical issue of course, is what they understood their role to be, not whether they took their role seriously.

The documents before the Commission suggest that individual AFP officers may not have had a clear understanding of the real role the legislation required the independent adult to play. During interviews in which the independent adult was asked to consent to the x-ray, AFP officers variously stated that the independent person ‘is there to make sure everything’s conducted fairly and that we treat you well’ and ‘is there to ensure that we treat you okay during the interview and for your support’.^[699]

In one interview where an Indonesian consular officer was acting as the independent adult, the consular officer expressed reluctance about signing the consent form. The AFP officer replied, ‘O’kay, all I am trying to do is acknowledge the fact that you were here’.^[700]

It is not clear from the material before the Commission what the individuals engaged by Life Without Barriers understood their role to be. A number of transcripts of interviews between young Indonesians and the AFP record the independent adult giving their consent for the young Indonesian to undergo the x-ray procedure. In many cases, the independent adult asks the individual whose age is in doubt to explain, in his own words, what he understands he is being asked to consent to and the purpose of the procedure. In general, the independent adult then explains why he or she is agreeing to consent to the x-ray procedure, ordinarily in the following terms:

Since you have indicated that you are under the age of 18 and you don’t have an adult guardian present, I’m going to sign this consent form as an independent observer on your behalf.^[701]

The Commission has not been provided with any material which suggests that those engaged by Life Without Barriers ever received an explanation of the role of the independent adult under the Crimes Act. As noted above, their contractual obligation was to act as an observer and to provide pastoral support to ensure the physical and emotional wellbeing of the child. By contrast, the role of the independent adult under the Crimes Act is to represent the young person’s interests and to provide informed consent to the x-ray procedure.

(c) Independent adults may not have been provided with the information required by the Crimes Act

From the documents before the Commission, it appears that, even where the independent adult signed the consent form (and in some cases no such signature was obtained), they may not have been given the information that the Crimes Act requires an independent adult to be given.

Section 3ZQC(2) of the Crimes Act requires that the specified information about the x-ray procedure be provided to ‘each of the persons from whom ... consent is being sought’. Clearly, this requires the relevant information to be provided to both the person whose age is in dispute and his parent, guardian or the independent adult.

It was not uncommon for the standard statement of information concerning wrist x-rays to have been provided by way of a written statement in Bahasa Indonesia which the interpreter read to the young Indonesian. Where the young person was able to read Bahasa Indonesia, the AFP sometimes provided the statement directly to the young person and invited him to read it to himself. The young Indonesian was then asked to consent to the x-ray procedure. In some cases, the independent adult was then immediately asked to consent to the procedure without being provided with the standard statement of information in English.^[702] There is nothing to suggest that the independent adults spoke or read Bahasa Indonesia.

(d) In some cases, the consent of an independent adult was not obtained

In [ULT055] v the Queen,^[703] the Commonwealth accepted that the consent of a parent, guardian or independent adult had not been obtained.^[704]

The Judge observed:

The federal agent agreed that when a person is transported from Christmas Island to Perth as a juvenile as a matter ‘of course’ the Australian Federal Police (AFP) arrange for a wrist x-ray to be taken to ascertain that person’s age. There was no evidence establishing whether written consents or magistrate orders were obtained on those other occasions and I am not able to say whether the procedure adopted on this occasion is the routine procedure adopted by the AFP. If it is there must be a change of procedure.

One would have expected the AFP would have procedures in place to check that they had obtained the written consent of the person and his parent and guardian before they took the person from the Immigration Department’s Custody. If those procedures were in place they failed on this occasion.^[705]

There are a number of cases where the documents provided to the Commission do not include a form signed by an independent adult.^[706] In its response to the draft report, the AFP stated that ‘it was established that the Interpreter was utilised as the independent person under the provisions of the Crimes Act 1914 at this time’. The AFP also states that the practice was discontinued some time ago.^[707] It is important to note that representing the interests of a person for whom he or she is providing interpretation services in not part of the conventional role of a professional interpreter. A professional interpreter is ordinarily required to be independent of their client.

The decision in [ULT055] raises the possibility that at about that time, the Commonwealth was treating DIAC’s written acknowledgement that an individual was being taken into AFP custody for the purpose of the x-ray as written consent by a guardian to that procedure being performed.

Documents provided to the Commission support such a conclusion.

In the week before the age determination hearing in [ULT055], the AFP contacted DIAC seeking urgent advice as to whether ‘there was an informed consent of an appropriate adult in relation to ULT055 and whether any such adult was not connected with the investigation’.^[708] DIAC responded to the effect that the Minister was not ULT055’s guardian and that it would not be accurate to advise the court that any DIAC officer was the delegated guardian of ULT055 or signed any forms in that capacity.^[709] Subsequent internal DIAC emails discuss the issue of consent and variously state:

• [AFP] appear to be looking to hinge substantiation of consent to wrist examination issues on [DIAC officer’s] testimony, when her involvement related to transfer of immigration custody. My understanding of processes at the time is that AFP came and collected such clients under an immigration transfer of custody arrangement to interview and that wrist X rays or scans sometimes took place but generally with no advice to DIAC as to their intentions in each instance.^[710]
• [AFP officer] also indicated that the CDPP may try to argue that consent was given as an ‘independent person’ rather than as a guardian. I am certainly no expert on the Crimes Act but there is a real problem here – the requirement is that there is written consent for the procedure from a parent/guardian/independent person as well as the individual concerned (or a court order) – the fact is they do not have the written consent in this case. In my discussions with both [AFP officers], they are very concerned about the impact of this case on the broader case load.^[711]
• The view of the CDPP is that without evidence of consent the case would fail. ... He was led to believe we provided consent by signing a transfer of custody document, however when I explained that is simply an internal document so we can prove continuity of immigration detention, he acknowledged it did not meet what he was seeking. As [DIAC officer] has acknowledged, proof of written consent is required and it seems AFP hold neither written or evidenced consent from any party, which in my view is an issue for them to address as they were the ones seeking to exercise a power under the Crimes Act. This case may have significant impact if the AFP have been x-raying alleged minors without consent from either the person or someone who is an independent responsible adult, as people smuggling prosecutions may fall over.^[712]

In December 2010, the Senior Assistant Director, People Smuggling Branch of the Office of the CDPP wrote a paper entitled ‘People Smuggling Prosecutions Age Determination Issues’. In his paper, the Senior Assistant Director discusses the requirement under the Crimes Act for informed consent to the x-ray procedure. He notes:

I am advised by the AFP that in the past officers of DIAC have acted as the independent persons and consented to the prescribed procedure where an accused people smuggler has claimed to be a juvenile. ... It may be that in these cases DIAC did not give informed consent but merely made available a suspect to the AFP. That is the position DIAC take, and the AFP at least at an operational level appear to accept this was the case.^[713]

(e) In some cases, consent was invalidly obtained because inaccurate information about the possibility of obtaining a court order was provided

The documents before the Commission show that in some cases the AFP officer conveyed to the individual that if he did not consent to the x-ray procedure an order would automatically be granted by a court authorising the x-ray to be taken.

This issue also arose in the case of [ULT055] v The Queen discussed above. The decision concerned whether consent to the carrying out of a wrist x-ray procedure had been properly obtained under the Crimes Act. Bowden DCJ found that it had not, stating:

The evidence establishes [ULT055] initially refused to give his consent and after he enquired what would happen if he did not consent was told he would be taken to court and consent would be ‘granted’ by a judge or ‘given’ by the Court.^[714]

The Judge found that it had been conveyed to ULT055 that he had no choice but to consent. For this reason, his Honour held that the consent given by ULT055 was not consent as required under s 3ZQC and the x-ray was therefore improperly obtained.

The Commission is concerned that in other cases, while the young person was not told that consent would be given by a judge, the possibility of a court authorising the wrist x-ray was put to them in a way likely to put pressure on them to give their consent. For example, the Inquiry has been provided with a transcript of a record of interview in which the AFP asked QUE053 for his consent to the x-ray procedure. The interview proceeded as follows:

Just one more thing. Would you be prepared to give us your consent to carry out an age determination procedure?

THE INTERPRETER: He’s thinking.

Okay. I’ll just explain for the purpose of the tape, that the procedure to determine your age is not painful, all it is, is a doctor will take an x-ray, which is a photograph of the bones in your wrist. It takes, it takes about twenty seconds, and you just put your wrist down and they take a picture of it and what that will tell us is whether you are nineteen or older or younger than nineteen. And that allows us to treat you correctly and fairly, as either a juvenile person or an adult person.

THE INTERPRETER: Oh, yes, I will not give this consent.

Okay. Just to advise that the way you’ve said you’re not willing to give your consent, we can actually apply to a magistrate and get a court order for them to let us take your wrist x-ray without your consent. I’m just advising you that might be a possibility that we might apply to the magistrate to obtain your wrist x-ray without your consent.

THE INTERPRETER: Yes

Can you tell me is there any reason why you don’t want us to do this procedure?

THE INTERPRETER: I just don’t feel like to have it.

That’s fine, that’s your choice but I’m just advising you that we may, in the future, be applying for a magistrate to take your wrist x-ray without your wanting us to do it.^[715]

A subsequent email between AFP officers, and copied to an officer of the Office of the CDPP, states that consent was ultimately given by the individual:

[QUE053] DID NOT consent on tape but afterwards when we further explained we were not cutting his arm off to undertake this procedure he said he’d changed his mind.^[716]

In another case, that of FLE048, the interview proceeded as follows:

[FLE048]: If I don’t want to be x-rayed it doesn’t matter?

Well I am asking you for your consent and you can give me your consent and I can get the x-ray done. If I ask you for consent and you don’t give me your consent I can’t get the x-ray done by consent. I can’t get it done if you don’t give me your permission. However if you don’t give me your permission I will go to a Judge and hopefully get an order to have your wrist x-rayed.

[FLE048]: It’s best to give you consent.^[717]

He then gave his consent to an x-ray of his wrist.

(f) In some cases a recording of consent does not appear to have been made

The Commission received some electronic recordings of interviews in which consent was given to the taking of a wrist x-ray, some transcripts apparently taken from recordings of this character, and some notes apparently made during interviews that were not electronically recorded. However, it was not provided with a recording or transcript for each individual who had a wrist x-ray taken.^[718]

In view of the breadth of the Commission’s request for documents, it seems reasonable to infer that not all interviews were recorded as required by the Crimes Act.

8 The Commonwealth’s approach to review of cases

As noted in Chapter 3, on 14 July 2011, the President of the Australian Human Rights Commission wrote to the then Attorney-General and expressed concern that there may have been cases where reliance on wrist x-ray analysis for the purposes of assessing age had resulted in erroneous conclusions about a person’s age. This was the first occasion on which the President explicitly requested that an independent review be conducted of cases involving people smuggling crew who said that they were children. In particular, the President urged that an independent body or person review whether a proper and reliable assessment of age has been conducted for any Indonesian national claiming to be a minor:

• who had been charged but not yet tried on people smuggling charges
• who had been convicted as an adult, including where a wrist x-ray was relied upon for the purposes of age determination.^[719]

The President asked that the then Attorney-General inform her by 5 August 2011 whether he would arrange such an independent review.

The then Attorney-General replied on 22 August 2011. He advised the President that he was not convinced of the need for an independent review of all age determination matters involving Indonesian nationals. He stated:

I hold this view because the court considers all available evidence, is fully aware of the limitations of x-rays, and the crew have independent legal representation. Further, by giving the benefit of the doubt in cases involving age, in particular from verified documentation relating to age, AFP and CDPP only proceed with cases with the highest probability that the person is an adult, and where information gathered consistently indicates that this is the case.^[720]

Nonetheless, the then Attorney-General invited the President to forward to his Department any concerns about the age determination process undertaken in any specific matters. On 28 September 2011, the Commission sent the then Attorney-General 10 notifications the Commission had received from Indonesian crew convicted of people smuggling offences who maintained that they were minors, with notifications regarding two further individuals being sent on 11 October and 8 November 2011.^[721]

On 8 November 2011, the President again wrote to the then Attorney-General expressing her concern about the delay it had taken for his Department to respond to the notifications regarding these individuals. The President reiterated her call for a review by an independent person or body of whether ‘a proper and reliable assessment of age has been conducted for every Indonesian national claiming to be a minor who has been convicted as an adult’.^[722] On 21 November 2011, this Inquiry was called. On 30 November 2011, the then Attorney-General wrote to the President to provide ‘factual evaluation’ of the 12 cases.^[723] It appears that no further evaluation of these cases was undertaken at this time. The AGD and AFP submission to the 2012 Senate Legal and Constitutional Affairs References Committee inquiry into detention of Indonesian minors in Australia, notes that AGD ‘did not make any formal recommendations about their management as the AHRC subsequently announced its inquiry on 21 November 2011’.^[724] The Commission does not view the calling of this Inquiry as an adequate reason to stop the review of these cases.

On 16 March 2012, after the Inquiry hearing for medical experts, the President wrote to the present Attorney-General urging her to conduct an independent assessment of age in all cases where convictions were obtained for people smuggling offences and there was substantial reliance on the use of wrist x-ray analysis to determine age. The President included the names of 17 individuals who had been convicted of people smuggling offences where:

• an age determination had been made wholly or substantially on the basis of wrist x-ray evidence
• after initially saying he was a child, the accused either admitted to being over the age of 18, or did not contest age, once presented with wrist x-ray evidence.^[725]

On 1 May 2012, the President wrote to the Attorney-General about an additional five similar cases that had been brought to her attention after officers of the Commission visited individuals in Albany Regional Prison and Pardelup Prison Farm. The President urged that a review of these cases be undertaken to enable the Attorney-General to satisfy herself that a child had not been prosecuted as an adult in any case.^[726]

In her letter, the President emphasised that the Commission is not the most appropriate agency to identify cases in which errors of age assessment may have been made. For this reason, the President urged the Attorney-General to ensure that the agencies involved in investigating and prosecuting people smuggling offences conducted a review of all cases where individuals who remained in adult custodial facilities and had at any time disputed their age.^[727]

On 2 May 2012, the Attorney-General communicated to the President that she would conduct an assessment of the cases of individuals convicted of people smuggling offences where substantial reliance had been placed on wrist x-ray analysis as evidence of age. Her review was to include the cases of the 22 individuals identified by the Commission as well as a further two crew who had said that they were minors and who had been identified by the Indonesian Embassy. The Attorney-General noted that, while efforts would be made to obtain documentary evidence of age from Indonesia, it may not be possible to do so in all cases. The Attorney-General stated that the benefit of the doubt would be given where evidence suggested an individual may have been a child at the relevant time. The letter advised:

If verified documentation from Indonesia or DIAC age assessments suggests that the benefit of the doubt should be given to these crew on the basis that they may have been minors at the time of the offence, I will consider whether early release on licence is an appropriate outcome for these crew.^[728]

On 3 May 2012, the President replied to the Attorney-General. She urged the Attorney-General to act as quickly as possible on cases where material was available to suggest that the crew should be given the benefit of the doubt. The President drew to the attention of the Attorney-General three particular cases in which the relevant agencies had, during the Inquiry hearing for Commonwealth agencies,^[729] been made aware of the existence of material establishing some doubt about the age of individuals who had been convicted of people smuggling offences. During the hearing, certain admissions were made by the agencies about the conduct of those three matters. In particular:

• In one matter,^[730] the Office of the CDPP had acknowledged that they had disputed the admission of a birth certificate that suggested an individual was 14 years old at the time of the offence.
• In one matter,^[731] the AFP acknowledged that the prosecution had continued even though the medical expert report observed that the bones of the wrist were not fully fused.
• In one matter,^[732] the Office of the CDPP acknowledged that the initial medical expert report regarding the wrist x-ray was not definitive and a second opinion was sought and the prosecution continued.^[733]

The President also noted that at the Inquiry hearing for Commonwealth agencies, officers from DIAC had advised that they had completed focused age assessment interviews with the individuals identified in the Commission’s letter of 16 March 2012 and on 18 April 2012 had provided a report to AGD on the results of those interviews.

On 17 May 2012, the Attorney-General wrote to the President to advise her of the initial outcome of the review of the cases of individuals convicted of people smuggling. She advised that DIAC had finalised its age assessment of the first 19 crew subject to review. Of the four individuals DIAC had assessed as likely to have been minors at the date of the offence, the Attorney-General had decided to release three on licence. The Attorney-General explained that the Indonesian National Police had provided documentary evidence about the fourth individual which indicated that he was an adult at the time of the offence and that further inquiries concerning him were being pursued in Indonesia. The Attorney-General subsequently advised on 7 June 2012 that she would release this individual on licence.

The Attorney-General further stated that the Office of the CDPP had advised that there were an additional four crew who had been convicted of a people smuggling offence and who had raised age at some point during investigation or prosecution and that these individuals would be included in the review. Another three individuals had completed their sentences and been returned to Indonesia.

The President replied on 18 May 2012 urging that the review be completed as soon as practicable given that it was possible that individuals who had been convicted of people smuggling offences and detained in adult correctional facilities were minors at the time of their apprehension.^[734]

On 28 May 2012, the Attorney-General wrote to the President to assure her that the review of the cases of individuals suspected of people smuggling was proceeding as quickly as possible. She further advised that AGD had asked the AFP to offer voluntary dental x-rays to those individuals whose cases remained under review.^[735]

On 6 June 2012, the President replied and expressed her concern that dental x-rays would be offered to the remaining individuals:

First, it is unclear to me how a dental x-ray conducted now, in many cases over two years from the date of apprehension, will give an indication of the individual’s age at that time.

Second, evidence and research before the Inquiry indicate that dental x-ray analysis is not sufficiently informative of whether an individual has attained the age of 18 years to be used with confidence for determining age in a criminal justice proceeding. I will draw this conclusion in the Inquiry report.

Third, internationally accepted principles regarding the use of radiography require that a process of justification be undertaken before radiation is used for a purpose other than for medical diagnosis or medical treatment. The Australian Radiation Protection and Nuclear Safety Agency has provided this advice to your Department. I am not aware of any such process of justification having been undertaken with regard to the use of either wrist x-ray analysis or dental x-ray analysis for the purpose of age assessment.^[736]

The next day, the Attorney-General wrote to the President to update her on the progress of the review of individuals convicted of people smuggling offences. She advised that she had granted early release on licence to a further two individuals in whose cases there was doubt about whether they were adults at the time of the offence. She had also decided to release two individuals on parole, 30 days before their non-parole periods were due to expire, although she did not hold any doubt that they were over the age of 18 when they were apprehended in Australian waters.^[737]

The Attorney-General provided progressive updates of the review. On 12 June 2012, she advised that three individuals would be granted early release on licence;^[738] and on 26 June 2012, she advised that three further individuals would be granted early release on licence.^[739]

The Attorney-General wrote to the President on 29 June 2012 to advise that the review was complete and that the final four individuals would be released early on licence. She confirmed that, of the 28 crew examined as part of the review:

• 15 were released early on licence on the basis that they may have been minors on arrival in Australia
• two crew were released early on parole
• three completed their non-parole periods prior to the commencement of the review, and
• eight were assessed as likely to be adults on arrival.^[740]

The Commission is troubled by the Commonwealth’s delay in calling the review of the cases of individuals convicted of people smuggling who had at some point in time said that they were less than 18 years of age at the time of their apprehension. The Commission first raised concerns about reliance on wrist x-ray analysis for age assessment purposes in February 2011 and explicitly called on the then Attorney-General to review cases where age was in doubt in July 2011. It was not until May 2012 that it was announced that a review would be conducted.

A delay of this length is disturbing when the rights of individuals who might be children are involved, especially when they are in detention. The review has concluded that there is some doubt as to whether 15 individuals were aged over 18 years of age at the time of their apprehension. All of these 15 individuals spent long periods of time in adult correctional facilities prior to their release.

9 Findings

9.1 Findings regarding the application of the principle of the benefit of the doubt

Despite undertakings given by the Australian Government in 2001 that the benefit of the doubt would be applied in cases where individuals suspected of people smuggling were not clearly adults,^[741] and despite the repeated assertions by the Australian Government throughout 2011 that the benefit of the doubt was being afforded to individuals in this circumstance, it is clear that in many cases this did not occur.

The procedure adopted by the AFP for deciding whether to charge a person as an adult, notwithstanding his claim to be a child, demonstrates that the benefit of the doubt was not afforded. In many cases, the only available information which threw doubt on the person’s claim to be a minor was wrist x-ray analysis that showed skeletal maturity. Uniformly, a person assessed to be skeletally mature would be charged as an adult even when he said that he was a child. This was not a practice that afforded the benefit of the doubt to the individual. It would only have done so had wrist x-ray analysis been capable of determining age with some precision. It is plain that it could not and that this had been widely recognised since at least 2001.

It is clear that charging a person as an adult on the basis that he has achieved skeletal maturity, as shown by a wrist x-ray, has led to an informal reversal of the onus of proof concerning age. The relevant provisions in the Migration Act do not make it clear which party bears the onus of proving that the defendant is under, or alternatively over, the age of 18 years and courts have come to differing conclusions about whether the defendant or the prosecution bears that onus. Placing the onus on the defendant undermines the application of the principle of the benefit of the doubt. Consequently, although it is current practice for counsel for the CDPP to accept the onus of proving that an individual is an adult, this should be formalised by amendment of the relevant provisions of the Migration Act.

9.2 Findings regarding the reliance on wrist x-ray analysis as a basis for charging and prosecuting individuals as adults

It appears that the specifying of a wrist x-ray as a prescribed procedure for the purposes of age determination in criminal proceedings has influenced attitudes towards the evidentiary value of assessments of age based on wrist x-rays and to the need for wrist x-rays to be taken. The Commonwealth Director of Public Prosecutions gave evidence that, but for the fact that the wrist x-ray procedure was prescribed, it was an ‘extremely limited and probably useless mechanism’.^[742] In his response to the draft report, the Commonwealth Director of Public Prosecutions stressed that:

the unique circumstances leading to the creation of the GP Atlas left a legacy with which we were able to work. This is solely as a result of being given recourse to it by Parliament’s providing access through legislation to wrist x-rays as the one prescribed aid to age determination. This reflected that without being prescribed the procedure would not be able to be the subject of an order facilitating its use in aid of age related determinations.^[743]

The AFP developed the practice of nearly always having a wrist x-ray taken where an individual disputed his age, and a senior officer from AGD described the procedure as one that ‘the AFP is required to follow’.^[744] However, as the Explanatory Memorandum in respect of the 2001 amending legislation makes clear, wrist x-rays were intended by the Parliament to be a procedure available for use when investigating officials had used all other reasonable means to make an assessment of an individual’s age.

Where analysis of an individual’s wrist x-ray resulted in a finding that the individual was skeletally mature, he was immediately treated by the AFP as an adult, including for the purpose of the laying of charges against him – even if there was no other evidence of his age and even if he continued to assert that he was under the age of 18 years. Many of those who were arrested and charged as adults, based solely on wrist x-ray evidence, ultimately had their prosecutions discontinued. In some of these cases, the individual spent a very long period of time in detention, including in an adult correctional facility. Some individuals were ultimately convicted as adults in circumstances where the only evidence of age provided to the court was wrist x-ray evidence. In some cases wrist x-rays were taken even where documentary evidence of age existed. Finally, in late 2011, the Office of the CDPP decided that in cases where there was no probative evidence of age other than the wrist x-ray analysis, the prosecutions should be discontinued. The length of time that some of the individuals affected by this decision had spent in detention prior to their cases being discontinued is disturbing.

Particular disregard for the rights of children is demonstrated by the ongoing detention of some individuals whose wrist x-ray analyses indicated that they were not skeletally mature. There appear to have been significant delays 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; and between the making of a decision not to prosecute and the making of a request to cancel a CJSC and ultimate removal from Australia. These delays have resulted in the unjustified and prolonged detention of minors.

Also, in direct contravention of Australian Government policy, some individuals were charged as adults despite the analysis of their wrist x-ray being inconclusive as to whether they were an adult. In several of these cases, the AFP, either of their own initiative, or at the request of the Office of the CDPP, sought a second opinion on whether the wrist x-ray showed skeletal maturity. When they sought a second opinion, it appears that they nearly always did so from Dr V. Low , the Commonwealth’s expert witness of choice. It is of concern that, rather than these individuals being given the benefit of the doubt and their prosecutions discontinued because the wrist x-ray analysis was inconclusive, they were charged as adults and then a second opinion was sought in order to justify continuing the prosecution. The Commission is aware of at least two cases where individuals whose wrist x-ray analyses were inconclusive were convicted and sentenced to terms of five years imprisonment (with non-parole periods of three years). Both were released on licence, one in May 2012 and one in June 2012, after the Commonwealth conceded that there was doubt about his age at the time of his apprehension.

It appears that wrist x-ray analysis was relied upon as evidence of age despite alternative age assessment procedures, for example DIAC focused age assessment interviews, which found it likely that the individual was under the age of 18. The AFP gave a commitment that they would not charge any individual assessed by DIAC to be under the age of 18 following the focussed age assessment interviews conducted in October 2010. Despite this commitment, in at least 12 cases where DIAC’s assessment was that the individual was likely to be a minor, the AFP subsequently arranged for wrist x-rays to be obtained. In seven of these cases the x-ray showed skeletal maturity. All of these individuals were charged, with the prosecution ultimately being discontinued in every case – but not until the individual had spent a prolonged period of time in detention.

It also appears that in some circumstances the Commonwealth led young Indonesians to believe that wrist x-ray evidence was determinative of age. In some cases, individuals’ legal representatives accepted the medical evidence based on wrist x-rays as determinative and accordingly advised their clients to plead guilty. It appears likely that in some cases the individual did not raise the issue of their age again, or pleaded guilty thereby conceding their age, after receiving the results of the wrist x-ray because they were under the mistaken belief that those results were accurate and conclusive.

It can only be concluded that the practice of relying on wrist x-ray analysis for age assessment purposes has resulted in the investigation, prosecution and prolonged detention of a significant number of young Indonesians who are likely to have been children at the time of the people smuggling offence of which they were suspected.

9.3 Findings regarding the obtaining of consent for wrist x-ray procedures to be conducted

In many, indeed possibly all, cases it appears that the required consents for a wrist x-ray to be taken were not properly obtained.

First, until July 2011, the information that was provided to the young Indonesians from whom consent was sought was misleading as it implied that the wrist x-ray procedure would accurately determine his age. In March 2011, the Office of the CDPP advised the AFP that the standard statement of information should be amended to make it clear that a wrist x-ray can only give a probable estimation of a person’s age. The formal amendment of the information was only made in August 2011, although the AFP has advised that the information was in practice changed earlier. There seems, nonetheless, to have been a considerable delay in rectifying this problem.

Secondly, it may be that no second informed consent was ever obtained. It seems that in early cases the requirement for a second consent was often overlooked. Thereafter reliance was ordinarily placed on a consent provided by an ‘independent observer’ whose responsibilities did not involve representing the best interests of the child. The responsibilities of the independent observer were significantly more limited and focused on monitoring the minor’s physical and emotional wellbeing. Additionally, it does not appear that the independent observers were always provided the information required by the Crimes Act to be given to the independent adult.

Thirdly, in at least one case, the young person’s consent was not validly obtained as the AFP officer conveyed to the individual that, if he did not consent to the x-ray procedure, an order would automatically be granted by a court authorising the x-ray to be taken.

Fourthly, it appears that in some cases a recording of the obtaining of consent, as required by the Crimes Act, was probably not made.

The AFP is the Commonwealth’s principal law enforcement agency; its own compliance with the law is critical to its integrity. It is therefore particularly regrettable that the AFP should have failed to comply with the requirements of the Crimes Act in the above ways. It is the more regrettable that it did so in its dealings with a group of young people who were especially vulnerable by reason of being away from their families and outside their country of nationality.

9.4 Findings regarding the review of cases in which substantial reliance had been placed on wrist x-ray analysis

It is concerning that in mid-2011, the then Attorney-General was advised to decline the request made by the President of the Australian Human Rights Commission for a review of cases in which substantial reliance had been placed on wrist x-ray analysis. There was at that time substantial evidence available to the Commonwealth that called into question the utility of wrist x-ray analysis as evidence that a person was over the age of 18 years. The need for this review is demonstrated in the fact that ultimately in 15 cases it was found that there was a doubt about whether individuals had been adults at the time of their offence. These individuals all spent long periods of time detained in adult correctional facilities.

^Top

---

^[486] Australian Government, Joint submission, Submission 30, p 8.

^[487] The difference between these figures and those provided in the Joint Commonwealth submission may be explained in part by the differences in time periods. However, the Commission believes that some of the 208 people identified by the Joint Commonwealth submission as having claimed to be a minor at the time of their apprehension may not in fact have made this claim.

^[488] Crimes Amendment Regulations 2001 (No 2) (Cth).

^[489] Commonwealth Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report of the Inquiry into the Provisions of the Crimes Amendment (Age Determination) Bill 2001 (March 2001) (Report of Senate Committee 2001), para 3.18.

^[490] Report of Senate Committee 2001, above, para 4.9, recommendation 8.

^[491] Revised Explanatory Memorandum, Crimes Amendment (Age Determination) Bill 2001 (Cth) (Revised Explanatory Memorandum 2001), p 2.

^[492] Deputy Director, CDPP Perth Office, Email to Assistant Commissioner, National Manager Crime Operations, AFP, 12 April 2011 (AGD document PROS-17).

^[493] Senior Legal Officer, Office of International Law, AGD, Letter to Principal Legal Officer, People Smuggling and Border Protection Section, AGD, 2 May 2011, Attachment – Email from AGD Officer, Border Management and Crime Prevention Branch, Criminal Justice Division, AGD, 4 May 2011 (AGD document PROS-27), p 8.

^[494] Talking points on the working group on age determination to be discussed at the Australia-Indonesia Consular Consultations – Perth, 30 June 2011 (AGD document BRIEF-19), p 2.

^[495] Hon R McClelland MP, Attorney General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011, pp 1–2.

^[496] Hon R McClelland MP, Attorney General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 August 2011, p 4.

^[497] Australian Government, Joint submission, Submission 30, p 16.

^[498] Australian Government, Joint submission, Submission 30, p 29.

^[499] Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, Email to Deputy Project Leader, Community Detention and Implementation, DIAC, 11 November 2010 (DIAC document mail39646006).

^[500] Ministers’ Office Brief – Attorney-General/Minister for Home Affairs, People smuggling – children in gaols, 27 May 2011, Attachment – Email from AGD Officer, Border Management and Crime Prevention Branch, Criminal Justice Division, AGD, 2 June 2011 (AGD document BRIEF-12), p 2.

^[501] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 138.

^[502] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 138.

^[503] Report of Senate Committee 2001, note 4, recommendation 8.

^[504] Commonwealth, Parliamentary Debates, House of Representatives, 2 April 2001, p 26186 (The Hon Darryl Williams MP, Attorney-General).

^[505] Commonwealth, Parliamentary Debates, Senate, 4 April 2001, p 23619 (The Hon Senator Abetz, Special Minister of State).

^[506] See for example, Children’s Court of Western Australia Act 1988 (WA).

^[507] See for example, Transcript of Proceedings, The Police v Henry Mazela (Children’s Court of Western Australia, O’Brien J, 12 February 2002) (Transcript – The Police v Mazela).

^[508] Crimes Act 1914 (Cth), s 19B.

^[509] Transcript of Proceedings, Australian Federal Police v [TOW043] (Magistrates Court of Victoria, Magistrate Collins, 1 December 2011) (TOW043 – CDPP document 179.0857), p 2.

^[510] R v [OSB051] [2011] WADC 95.

^[511] R v Udin and Aman (unreported, District Court of Western Australia, 8 November 2000); R v Kaspoa [2002] WACC, para 7 (O’Brien J); R v Junus [2002] WACC 2.

^[512] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 44.

^[513] Legal Aid Queensland, Submission 6, p 2.

^[514] Legal Aid Queensland, Submission 6, p 3.

^[515] Northern Territory Legal Aid Commission, Submission 32, p 5.

^[516] Australian Government, Joint submission, Submission 30, pp 6–7.

^[517] Senior Legal Officer, Financial Crime & Border Management Section, AGD, Email to Officer, AGD, 2 February 2010 (AGD document LEG-1).

^[518] Senior Legal Officer, Office of International Law, AGD, Email to Senior Legal Officer, Financial Crime & Border Management Section, AGD, 3 February 2010 (AGD document LEG-1).

^[519] AGD document LEG-1, above.

^[520] Senior Legal Officer, Office of International Law, AGD, Email to Senior Legal Officer, Financial Crime & Border Management Section, AGD, 4 February 2010 (AGD document LEG-1).

^[521] Officer, Financial Crime & Border Management Section, AGD, Email to DIAC, CDPP and AFP Officers, 22 February 2011 (AGD document LEG-6).

^[522] Options for dealing with minors in relation to people smuggling offences, Attachment A – Email from Officer, Legal Policy Section, DIAC, to Officer, Financial Crime and Border Management, Criminal Justice Division, AGD, 24 February 2011 (AGD document LEG-5).

^[523] AGD document LEG-5, above.

^[524] Report of Senate Committee 2001, note 4, recommendation 2, para 2.76.

^[525] Commonwealth, Parliamentary debates, Senate, 4 April 2001 p 23619 (Hon Senator Abetz, Special Minister of State).

^[526] Commonwealth, Parliamentary debates, Senate, 4 April 2001 p 23619 (Hon Senator Abetz, Special Minister of State).

^[527] Investigator, Border & International, AFP, Email to Legal Officer, CDPP, 30 November 2009 (ULT055 – CDPP document 047.0316). Note that in November 2010, a document was received from Indonesia by the AFP that suggested that ULT055 was over 18 years of age. The prosecution against this individual was ultimately discontinued.

^[528] Statement of material facts, AFP, undated (VMT011 – CDPP document 153.0048). The AFP received documentary evidence after VMT011 that may have indicated that he was an adult, however, it was for a person with a different name who may have used an alias that corresponded with VMT011’s name. In June 2012, this individual was released early on licence as it was accepted that there was doubt about whether he was an adult at the time of his apprehension.

^[529] Federal Agent, People Smuggling Strike Team, Crime Operations, AFP, Email to Officers, CDPP, 29 March 2011 (INN012 – CDPP document 240.0301).

^[530] Crown’s submissions on sentence, District Court of Western Australia, undated (QUE053 – AFP document 21), para 54.

^[531] Federal Agent Crime Operations, AFP Adelaide Office, Email to Principal Legal Officer, CDPP Adelaide Office, 4 October 2011 (LAW085 – CDPP document 367.0037).

^[532] Federal Agent, Team Leader People Smuggling Team, Crime Operations, AFP, Email to Team Leader, People Smuggling Strike Team, AFP Brisbane Office, 12 August 2011 (OFD030 – CDPP document 293.0651).

^[533] Transcript of taped record of interview, AFP, 10 December 2009 (DER024 – AFP document 9), p 24.

^[534] Statement of [academic expert] re: Indonesian identity and proof of age, Federation Fellow, Director, Asian Law Centre, Faculty of Law, The University of Melbourne, 24 May 2012, p 6 (AFP document provided 29 May 2012).

^[535] Chief Scientist, Office of the Chief Scientist, Letter to Deputy Secretary, National Security & Criminal Justice Group, AGD, 11 January 2012, p 2.

^[536] AFP, Response to draft report, 6 July 2012, p 21.

^[537] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012, p 3.

^[538] Australian Government, Joint submission, Submission 30, p 8.

^[539] Federal Agent, AFP Brisbane Office, Case Note, 3 August 2010 (HAM046 – AFP document 8).

^[540] Federal Agent, People Smuggling Operations Support Crime Operations, AFP, Email to AGD Officer, 20 October 2010 (HAM046 – AFP document 10).

^[541] Federal Agent, AFP, Case Note 14 May 2010 (GEE080 – AFP document 9).

^[542] Federal Agent, People Smuggling Operations Support, Crime Operations, AFP, Email to AGD Officer, 19 October 2010 (GEE080 – AFP document 10).

^[543] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 179.

^[544] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 179.

^[545] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 64.

^[546] Minutes, Age determination of people smuggling crew, 1 March 2011, Attachment – Email from Principal Legal Officer, AGD, to Commonwealth agencies, 3 March 2011 (AGD document ENG-AHRC-2).

^[547] Question time brief, Asylum seekers – child people smugglers (QTB10-470), Attachment – Email from Principal Legal Officer, People Smuggling Financial Crime and Border Management Section, Criminal Justice Division, to Officer, Department of Prime Minister and Cabinet, 17 November 2010 (DIAC document mail39646062).

^[548] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 90.

^[549] Deputy Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 114.

^[550] AFP, Response to draft report, 6 July 2102, p 12.

^[551] Federal Agent, Border and International, AFP, Email to Principal Legal Officer, CDPP, 10 August 2009 (QUE053 – CDPP document 211.0133).

^[552] NSW Legal Aid, Submission 35, pp 8–9.

^[553] Revised Explanatory Memorandum 2001, note 6, pp 4–5, para 9.

^[554] Report of Senate Committee 2001, note 4, Chapter 4, para 4.1.

^[555] Report of Senate Committee 2001, above, para 3.62.

^[556] Question time brief, Asylum seekers – child people smugglers (QTB10-470), Attachment – Email from Principal Legal Officer, People Smuggling Financial Crime and Border Management Section, Criminal Justice Division, to Officer, Department of Prime Minister and Cabinet, 17 November 2010 (DIAC document mail39646062).

^[557] Federal Agent, AFP, Email to Acting Principal Legal Officer, Counter Terrorism and People Smuggling, CDPP Sydney Office, 29 November 2011 (TYE059 – CDPP document 053.0004).

^[558] Deputy Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 198.

^[559] Transcript of taped record of interview, AFP, 7 July 2010 (NTN032 – CDPP document 173.0297), pp 17–20.

^[560] Transcript of taped record of interview, AFP, 5 May 2010 (MAL011 – CDPP document 150.0398), p 5.

^[561] Principal Legal Officer, CDPP Perth Office, Email to Counsel for defence, 12 November 2010 (UPW031 – CDPP document 004.0415).

^[562] Defence Barrister & Solicitor, Email to Principal Legal Officer, CDPP Perth Office, 12 November 2010 (UPW031 – CDPP document 004.0415).

^[563] Acting Senior Assistant Director, CDPP Perth Office, Email to Deputy Director, CDPP Perth Office, 5 August 2011 (JDT046 – CDPP document 111.0084).

^[564] Brief to counsel, Age determination hearing, 26 August 2011 (NTN031 – CDPP document 316.0246).

^[565] Federal Agent, Team Leader, People Smuggling Team, Crime Operations, AFP, Email to Officers, CDPP, 3 October 2011 (TIW044 – AFP document 24).

^[566] OSB051; YRE052; WAK090; PEN061; KAD059; ALE058; WAK089; OFD029; EAS054; WAK087.

^[567] OSB051; KAD059.

^[568] Interview with WAK087, Australian Human Rights Commission, 27 April 2012.

^[569] Officer, CDPP Perth Office, File Note, 21 June 2010 (WAK087 – CDPP document 079.0148). This document also refers to WAK089.

^[570] WAK087; WAK089.

^[571] Investigator, Border & International, AFP, Email to Legal Officer, CDPP, 30 April 2009 (DRU001 – CDPP document 341.0324).

^[572] Transcript of taped record of interview, AFP, 29 November 2010 (BOM064 – AFP document 8).

^[573] Federal Agent, AFP Melbourne Office, Case Note, 20 September 2010 (BOM064 – AFP document 1).

^[574] Federal Agent, AFP, Task Result Details, 20 October 2010 (BOM064 – AFP document 2).

^[575] Federal Agent, AFP Melbourne Office, Case Note, 12 November 2010 (BOM064 – AFP document 3).

^[576] Deputy Director, CDPP Perth Office, Email to Senior Legal Officer, CDPP Perth Office, 11 April 2011 (TIW043 – CDPP document 249.0354).

^[577] Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, Email to Secretary, DIAC, 3 September 2010 (DIAC document mail39642123).

^[578] Dr V. Low , Medical opinion, 2 April 2011 (JDT046 – DIAC document mail39645747_att1).

^[579] Age assessment interview report, DIAC, 27 February 2011 (JDT046 – CDPP document 110.0521).

^[580] Deputy Director, CDPP Perth Office, Email to Acting Senior Assistant Director, CDPP Perth Office, 8 August 2011 (JDT046 – CDPP document 111.0084); Prosecution Report, CDPP Perth Office, 18 August 2011 (JDT046 – CDPP document 111.0009).

^[581] Age assessment interview report, DIAC, 21 February 2011 (BOM062 – CDPP document 115.0136).

^[582] Medical opinion, 21 December 2010 (BOM062 – CDPP document 115.0236).

^[583] Federal Agent, AFP Melbourne Office, Case Note, 9 March 2011 (BOM062 – AFP document 16).

^[584] CDPP Officer, Minute to Senior Assistant Director, CDPP, 12 April 2011 (BOM062 – CDPP document 115.0033).

^[585] Age assessment interview report, DIAC, 21 February 2011 (TOW043 – CDPP document 179.0729).

^[586] Federal Agent, Operations Team, AFP Adelaide Office, Email to IMA Operations, Community and Detention Services Division, DIAC, 18 March 2011 (TOW043 – DIAC document mail39642183).

^[587] Team Leader, AFP Adelaide Office, Case Note, 20 April 2011 (TOW043 – AFP document 13).

^[588] Dr V. Low , Medical opinion, 27 April 2011 (TOW043 – CDPP document 179.0802).

^[589] Transcript of Proceedings, Australian Federal Police v [TOW043] (Magistrates Court of Victoria, Magistrate Collins, 1 December 2011) (TOW043 – CDPP document 179.0857).

^[590] Team Leader, People Smuggling Strike Team & International Investigations Capacity Training, Risk Fraud and Integrity Division, DIAC, Email to Christmas Island Detention Operations Team Leader, DIAC, 20 October 2010 (JAM074 – DIAC document mail39646050).

^[591] Age assessment interview report, DIAC, 28 January 2011 (JAM074 – AFP document 11).

^[592] Legal Officer, CDPP Darwin Office, Memo to Director, CDPP, 26 October 2011 (JAM074 – CDPP document 287.0007).

^[593] ‘Arrest/Summons/Caution (National) Details (Summary View)’, AFP, 24 March 2011 (JAM074 – AFP document 13).

^[594] Federal Agent, AFP Darwin Office, Email to Legal Officer, CDPP Darwin Office, 13 April 2011 (JAM074 – CDPP document 304.0056).

^[595] Christmas Island Detention Operations Team Leader, DIAC, Email to Team Leader, People Smuggling Strike Team & International Investigations Capacity Training, Risk Fraud and Integrity Division, DIAC, 20 October 2010 (JAM074 – AFP document 2).

^[596] Legal Officer, CDPP, Minute to Director, CDPP, 28 October 2011 (JAM074 – CDPP document 288.0622).

^[597] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012.

^[598] Senior Assistant Director, CDPP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 199.

^[599] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012.

^[600] Transcript – The Police v Mazela, note 22, p 7.

^[601] Report of Senate Committee 2001, note 4, para 3.18.

^[602] Australian Government, Joint submission, Submission 30, p 16.

^[603] In his response to the draft report, the Commonwealth Director of Public Prosecutions reported that the Office of the CDPP has been provided with expert evidence from 22 medical practitioners other than Dr V. Low . He acknowledged, however, that the CDPP was usually provided with two expert reports, an initial report and a second more detailed report, and that the more detailed report was ‘usually by Dr V. Low ’. See Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012, p 2.

^[604] Biodata form, DIAC, 11 January 2010 (TRA029 – DIAC document).

^[605] Legal Officer, CDPP Perth Office, Letter to Counsel for defence, 17 November 2010 (TRA029 CDPP document 063.0536).

^[606] Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP Perth Office, 17 November 2010 (TRA029 – CDPP document 063.0497).

^[607] Medical opinion, 20 January 2011 (TRA029 – CDPP document 065.0206).

^[608] Dr V. Low , Medical opinion, CDPP, 3 May 2011 (TRA029 – CDPP document 063.0401).

^[609] Officer, CDPP, File Note, 8 September 2011 (TRA029 – CDPP document 267.0159);

^[610] Prosecution Report, CDPP Perth Office, 20 September 2011 (TRA029 – CDPP document 064.0004).

^[611] Medical opinion, AFP, 15 January 2010 (UPW031 – AFP document 1).

^[612] Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP, 12 February 2010 (CDPP document 038.0454).

^[613] Dr V. Low , Medical opinion, 4 March 2010 (UPW031 – CDPP document 031.0121).

^[614] Legal Officer, CDPP, Email to Federal Agent Border & International, AFP, 3 March 2010 (UPW031 – CDPP document 038.0408).

^[615] Legal Officer, CDPP Perth Office, Email to Officer, CDPP, 5 March 2010 (UPW031 – CDPP document 038.0396).

^[616] Transcript of Proceedings, The Queen v RMA (District Court of Western Australia, Eaton DCJ, 11 November 2011) (UPW031 – CDPP document 037.0003).

^[617] Transcript of taped record of interview, AFP, 7 July 2010 (NTN031 – AFP document 7), pp 5–6.

^[618] Deputy Director, CDPP Perth Office, Email to Officers, CDPP, 12 April 2011 (NTN031 – CDPP document 315.0275).

^[619] Dr V. Low , Medical opinion, 6 August 2011 (NTN031 – CDPP document 031.0008).

^[620] Senior Assistant Director, CDPP Perth Office, Memo to Director, CDPP Head Office, 18 November 2011 (NTN031 – CDPP document 323.0943).

^[621] Medical opinion, 15 January 2010 (VMT011 – CDPP document 153.0088). See also, Senior Legal Officer, CDPP Perth Office, Email to CDPP Officer, 4 July 2011 (VMT011 – CDPP document 154.0036).

^[622] Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP, 26 February 2010 (VMT011 – CDPP document 153.0342).

^[623] Dr V. Low , Medical opinion, 26 April 2011 (VMT011 – CDPP document 154.0273).

^[624] Senior Legal Officer, People Smuggling Branch, CDPP Perth Office, Email to Deputy Director, CDPP Perth Office, 28 April 2011 (VMT011 – CDPP document 154.0269).

^[625] Entry interview, DIAC, 21 January 2010 (PEN060 – CDPP document 134.1642).

^[626] Transcript of taped record of interview, AFP, 9 July 2010 (PEN060 – CDPP document 134.0191).

^[627] Counsel for defence, Email to Legal Officer, CDPP, 12 March 2011 (PEN060 – CDPP document).

^[628] Dr V. Low , Medical opinion, 20 March 2011 (PEN060 – CDPP document 135.0125).

^[629] Deputy Director, CDPP Perth Office, Email to Legal Officer, CDPP, 14 April 2011 (PEN060 – CDPP document 186.0002).

^[630] Entry interview, DIAC, 29 September 2009 (WAK089 – CDPP document 076.0214), p 3; Transcript of taped record of interview, AFP, 12 October 2009 (WAK089 – CDPP document 070.0086).

^[631] Dr V. Low , Medical opinion, AFP, 15 October 2009 (WAK089 – CDPP document 070.0040).

^[632] Prosecution notice, Magistrates Court of Western Australia, AFP, 15 October 2009 (WAK089 – AFP document 5).

^[633] Senior Legal Officer, CDPP Perth Office, Brief to counsel, 18 October 2010 (WAK089 – CDPP document 046.0178).

^[634] Transcript of taped record of interview, AFP, 4 March 2010 (EAS054 – AFP document 5).

^[635] Legal Officer, CDPP, Email to Legal Aid Officer, Legal Aid WA, 11 May 2010 (EAS054 – CDPP document 050.0179).

^[636] Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP, 11 May 2010 (EAS054 – CDPP document 051.0208).

^[637] Federal Agent, AFP, Email to Legal Officer, CDPP, 14 May 2010 (EAS054 – CDPP document 051.0173). It is interesting to note that Dr V. Low ’s observation, as reported in this email, is inconsistent with his usual observation that for a young male skeletal maturity is achieved, on average at age 19 years.

^[638] Hon N Roxon MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 17 May 2012.

^[639] Transcript of taped record of interview, AFP, 4 March 2010 (EAS056 – AFP document 6), p 4.

^[640] Transcript of Proceedings, The Queen and [EAS054] and Madina Marwan and [EAS056] (District Court of Western Australia, Staude DCJ, 17 September 2010) (EAS056 – CDPP document 050.0109).

^[641] Transcript of taped record of interview, AFP, 22 December 2009 (LAL041 – AFP document 3), p 7.

^[642] Transcript of taped record of interview, AFP, 1 June 2011 (DRL038 – AFP document 12), pp 2–3.

^[643] Transcript of taped record of interview, AFP, 9 December 2009 (DER026 – AFP document 8), pp 13–14.

^[644] Psychological Assessment Report, Defence, 28 June 2011 (INN012 – CDPP document 240.0238), p 6.

^[645] Syam’s legal representative gave the Commission permission to quote from his statement.

^[646] Statutory Declaration, Syam, 16 May 2012 (Document provided to Commission 20 May 2012).

^[647] Statutory Declaration, Syam, 16 May 2012 (Document provided to Commission 20 May 2012).

^[648] Transcript of Proceedings, The Queen v Lorens Lapikana and [QUE053] and Anwar Abdullah and [QUE051] (District Court of Western Australia, Wisbey DCJ, 23 September 2010) (QUE051 – CDPP document 208.0315), p 670.

^[649] Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s Case) (1992) 175 CLR 218.

^[650] B Matthews, ‘Children’s Consent to Medical Treatment’ in B White, F McDonald and L Willmott (eds), Health Law in Australia (2010) 113, 116.

^[651] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

^[652] Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, 239–240 (Mason CJ, Dawson, Toohey and Gaudron JJ).

^[653] Commonwealth, Parliamentary Debates, Senate, 4 April 2001, p 23619 (The Hon Senator Abetz, Special Minister of State).

^[654] National Health and Medical Research Council, General Guidelines for Medical Practitioners on Providing Information to Patients (2004) (General Guidelines for Medical Practitioners 2004), p 7. At http://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/e57.pdf (viewed 9 July 2012).

^[655] See Schloendorff v Society of New York Hospital (1914) 105 NE 92, 93 (Cardozo J) cited in Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, 234 (Mason CJ, Dawson, Toohey and Gaudron JJ).

^[656] General Guidelines for Medical Practitioners 2004, note 169, p 9.

^[657] General Guidelines for Medical Practitioners 2004, above, p 11.

^[658] General Guidelines for Medical Practitioners 2004, above, p 11.

^[659] Transcript of hearing, Public hearing for key medical experts (9 March 2012), pp 56–57.

^[660] Dr Ella Onikul, Dr Paul Hofman, Transcript of hearing, Public hearing for key medical experts (9 March 2012), pp 59–60.

^[661] Dr Ella Onikul, Transcript of hearing, Public hearing for key medical experts (9 March 2012), p 59.

^[662] Crimes Act 1914 (Cth), s 3ZQB.

^[663] Crimes Act 1914 (Cth), s 3ZQC(1).

^[664] Explanatory Memorandum, Crimes Amendment (Age Determination) Bill 2001 (Cth) (Explanatory Memorandum 2001), para 12.

^[665] Explanatory Memorandum 2001, above, para 13.

^[666] Crimes Act 1914 (Cth), s 3ZQC(2).

^[667] Crimes Act 1914 (Cth), s 3ZQE.

^[668] Crimes Act 1914 (Cth), s 3ZQE(2).

^[669] Report of Senate Committee 2001, note 4, para 4.10.

^[670] Crimes Act 1914 (Cth), s 23WE(1).

^[671] Crimes Act 1914 (Cth), s 23WR.

^[672] Crimes Act 1914 (Cth), s 23XWQ.

^[673] Crimes Act 1914 (Cth), s 23XWR(1)(a).

^[674] Crimes Act 1914 (Cth), s 23XWR(1)(b).

^[675] Crimes Act 1914 (Cth), s 23XWR(1)(c).

^[676] Crimes Act 1914 (Cth), s 23XWR(1)(e).

^[677] Crimes Act 1914 (Cth), s 23XWR(1)(f).

^[678] Crimes Act 1914 (Cth), s 23XWQ(2)(b)(ia).

^[679] Consent may be withdrawn expressly, or it may be inferred from the conduct of the parent or guardian. See Crimes Act 1914 (Cth), s 23XWT(1).

^[680] Crimes Act 1914 (Cth), s 23XWT(2). This requires consent to be expressly withdrawn and is subject to an order made under s 23XWV of the Crimes Act.

^[681] Crimes Act 1914 (Cth), s 23XWU(1)(a).

^[682] Crimes Act 1914 (Cth), ss 23XWU(2)(a)–(e).

^[683] ‘DSM: Chapter 2 – Client placement – Minors in Detention’, DIAC (DIAC document PAM3), para 22.1.

^[684] Life Without Barriers. At http://www.lwb.org.au/About-Us/Pages/default.aspx (viewed 9 July 2012).

^[685] Australian Government, Joint submission, Submission 30, p 28.

^[686] ‘Information to be provided to persons prior to consent for wrist x-ray being obtained’, AFP, undated (TYE059 – CDPP document 053.0224).

^[687] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 17 February 2011.

^[688] Senior Assistant Director, Legal Policy and Practice Management, CDPP, Letter to National Manager Crime Operations, AFP, 3 March 2011 (CDPP document Attachment D Document 5).

^[689] ‘Section 3ZQC(2) Part IAA Division 4A Crimes Act 1914’, AFP, Aide Memoire, 19 August 2011 (Document provided in hard copy 21 December 2011). See also, Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 3 September 2011 (AFP document 20110903).

^[690] Assistant Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 124.

^[691]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287.

^[692] Commonwealth, Parliamentary Debates, Senate, 4 April 2001, p 23619 (The Hon Senator Abetz, Special Minister of State).

^[693] ‘DSM: Chapter 2 – Client placement – Minors in Detention’, DIAC (DIAC document PAM3), para 22.3.

^[694] DIAC document PAM3, above, para 22.2.

^[695] ‘Contract of Services, Schedule 2C, Item B. Services’, DIAC (DIAC document provided to Commission 19 January 2012).

^[696] ‘Contract of Services, Schedule 2C, Item B. Services’, DIAC (DIAC document provided to Commission 19 January 2012).

^[697] Deputy Project Leader – Community Detention Implementation, Principal Advisor’s Unit, DIAC, Email to Principal Legal Officer, AGD, 11 March 2011 (DIAC document mail39642174).

^[698] Coordinator Legislation Program, Policy and Governance, AFP, Email to Officer, AGD, 18 March 2011 (AGD document DAA-2).

^[699] Transcript of taped record of interview, AFP, 30 July 2009 (QUE053 – CDPP document 198.0596), p 4; Transcript of taped record of interview, AFP, 1 July 2010 (OFD030 – AFP document 14), p 6.

^[700] Transcript of taped record of interview, AFP, 15 June 2009 (FLE048 – CDPP document 091.0040), p 3.

^[701] Transcript of taped record of interview, AFP, 21 January 2010 (PEN060 – CDPP document 135.0098). See also, Transcript of taped record of interview, AFP, 21 January 2010 (NTN031 – CDPP document 173.0458); Transcript of taped record of interview, AFP, 20 January 2010 (Ali Jasmin – CDPP document 026.0300).

^[702] See Ali Jasmin; NTN031; MAL011.

^[703] [ULT055] v The Queen [No 2] [2010] WADC 169.

^[704] [ULT055] v The Queen [No 2] [2010] WADC 169, [66].

^[705] [ULT055] v The Queen [No 2] [2010] WADC 169, [69]–[70].

^[706] See for example, WAK087; WAK089; DRU011; WAK090; QUE051; DRU003; DRU002.

^[707] AFP, Response to draft report, 6 July 2012, p 18.

^[708] Federal Agent, Border and International, AFP, Email to Director Detention Operations West, Community and Detention Services Division, DIAC, 2 November 2010 (ULT055 – DIAC document mail39645970).

^[709] Director, Principal Advisor’s Unit, DIAC, Email to Federal Agent, Border and International, AFP, 4 November 2010 (ULT055 – DIAC document mail39645970).

^[710] Regional Manager Detention, DIAC Perth Office, Email to Director Principal Advisor’s Unit, DIAC, 5 November 2010 (ULT055 – DIAC document mail39645970).

^[711] Director, Principal Advisor’s Unit, DIAC, Email to Regional Manager Detention, DIAC Perth Office, 5 November 2010 (ULT055 – DIAC document mail39646024).

^[712] Regional Manager Curtin Operations, DIAC, Email to Director Principal Advisor’s Unit, DIAC, 5 November 2010 (ULT055 – DIAC document mail39646024).

^[713] Senior Assistant Director, People Smuggling Branch, CDPP, People Smuggling Prosecutions Age Determination Issues, 15 December 2010 (CDPP document 4 – Attachment D), p 6.

^[714] [ULT055] v The Queen [No 2] [2010] WADC 169, [36].

^[715] Taped record of interview, AFP, 30 July 2009 (QUE053 – AFP document 1), pp 19–20.

^[716] Federal Agent, AFP, Email to Federal Agent, AFP, 30 July 2009 (QUE053 – CDPP document 211.0133).

^[717] Transcript of taped record of interview, AFP, 15 June 2009 (FLE048 – CDPP document 091.0040).

^[718] See for example, LAL041; PRK056. In some cases where a recording was not provided to the Commission, the AFP has informed the Commission that a recording was made: QUE051; QUE053. It appears that in at least one case, consent was not recorded because a signed consent from was received from the accused’s solicitor: HWD059.

^[719] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 14 July 2011, p 4.

^[720] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 August 2011.

^[721] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 26 September 2011.

^[722] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 8 November 2011, p 2.

^[723] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 November 2011.

^[724] Submission by the Attorney-General’s Department and Australian Federal Police to the Commonwealth Senate Legal and Constitutional Affairs References Committee, ‘Inquiry into detention of Indonesian minors in Australia’, June 2012, pp 26–27.

^[725] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP, Attorney-General, 16 March 2012.

^[726] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP, Attorney-General, 1 May 2012.

^[727] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP, Attorney-General, 1 May 2012.

^[728] Hon N Roxon MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 2 May 2012.

^[729] Held on 19 and 20 April 2012.

^[730] KAD059. See Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 194.

^[731] WAK089. See Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 202–209.

^[732] VMT011. See Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 215–221.

^[733] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP, Attorney-General, 3 May 2012.

^[734] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP. Attorney-General, 18 May 2012.

^[735] Hon N Roxon MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 28 May 2012.

^[736] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP, Attorney-General, 6 June 2012, p 1.

^[737] Hon N Roxon MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 7 June 2012.

^[738] Hon N Roxon MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 12 June 2012.

^[739] Hon N Roxon MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 26 June 2012.

^[740] Hon N Roxon MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 June 2012.

^[741] Revised Explanatory Memorandum 2001, note 6, p 2. See discussion in section 2 above.

^[742] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 179.

^[743] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012, pp 5–6.

^[744] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 90.