An age of uncertainty

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

Foreword

This report makes disturbing reading. It documents numerous breaches by
Australia of both the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. As a nation that is
understandably anxious that the rights of our own children should be respected
when they come into contact with the authorities of other countries, it is
troubling that between late 2008 and late 2011 Australian authorities apparently
gave little weight to the rights of this cohort of young Indonesians.

The events outlined in this report reveal that, in the above period, each of
the Australian Federal Police, the Office of the Commonwealth Director of Public
Prosecutions and the Attorney-General’s Department engaged in acts and
practices that led to contraventions of fundamental rights; not just rights
recognised under international human rights law but in some cases rights also
recognised at common law, such as the right to a fair trial. It seems likely
that some of those acts and practices are best understood in the context of
heavy workloads, difficulties of investigation and limited resources. Others,
however, seem best explained by insufficient resilience in the face of political
and public pressure to ‘take people smuggling seriously’; a pressure
which seems to have contributed to a high level of scepticism about statements
made by young crew on the boats carrying asylum seekers to Australia that they
were under the age of 18 years.

Support for this conclusion is perhaps most obviously found in the
authorities’ failure for a significant period of time seriously to
question practices and procedures that led to young Indonesians who said that
they were children being held in detention in Australia for long periods of
time.

The average period of time spent in detention by a young Indonesian crew
member whose wrist was x-rayed but who was not charged with any offence was 5.4
months – with the longest period that an individual in this class was held
being 9.8 months.
The average period of time spent in detention by a young Indonesian crew
member whose wrist was x-rayed but whose prosecution for people smuggling was
eventually discontinued, in most cases because it was doubted that the
Commonwealth could prove that he was over the age of 18 years when apprehended,
was 14.4 months (of which an average of 6.6 months was spent in an adult
correctional facility). The longest period that an individual in this class was
held was just over two years, of which over 21 months were spent in an adult
correctional facility.

These are periods of detention that
Australian authorities would ordinarily consider quite unacceptable for children
– or for young people who might be children – who had not been
convicted of any offence.

Fifteen young Indonesian crew members were ultimately released on licence
because there was doubt about whether they were adults at the time of their
apprehension. The average period of their detention was 31.6 months, of which
28.8 months were spent in adult correctional facilities. The longest period that
an individual in this class was held was 34 months, of which 32.6 months were
spent in an adult correctional facility. Each of these young Indonesians had
been sentenced to a mandatory term of imprisonment applicable only to an
adult.

It is plain that Australian authorities were until recently reluctant to
question whether wrist x-ray analysis provides a sound basis for a determination
that a young person is over the age of 18 years – notwithstanding the
growing, and eventually compelling, evidence that it does not. It is difficult
to judge whether this is further evidence of a high level of scepticism about
claims to be under the age of 18 years or evidence simply of a strong desire for
a scientific means of establishing chronological age – or perhaps both.

This reluctance to question the usefulness of wrist x-rays for the purpose
for which they were being used is most clearly seen in the continued reliance by
the AFP and the CDPP on a particular radiologist who used this technique –
notwithstanding that each of the Royal Australian and New Zealand College of
Radiologists; the Australian and New Zealand Society for Paediatric Radiology;
the Australasian Paediatric Endocrine Group; and the Division of Paediatrics,
Royal Australasian College of Physicians had expressed the view that the
technique was unreliable and untrustworthy.

An unwillingness to question this inherently flawed technique can equally
clearly be seen in the failure of the Office of the CDPP to identify that it was
under a duty to examine whether it could continue to maintain confidence in the
integrity of the evidence being given by the radiologist engaged by the AFP, and
under an obligation to disclose to the defence the material in its possession
that tended to undermine his evidence.

The same unwillingness is apparent in the failure by AGD to review the
contemporary literature which critically examined the technique; to seek
independent expert advice to assist its understanding of that literature; and
thereafter to provide informed and frank policy advice to the Attorney General
– including advice concerning the risk that reliance on the technique had
led, and would continue to lead, to children wrongly being identified as
adults.

The dogged reliance on wrist x-ray analysis as evidence of maturity appears
for a significant period of time to have contributed to inadequate efforts being
made to obtain documentary evidence of age from Indonesia and to the giving of
limited, if any, weight to such evidence when assessments were made of the ages
of the young Indonesians. Furthermore, that reliance appears to provide at least
part of the explanation for the results of focused age assessment interviews
conducted in late 2010 being disregarded.

The result of reliance on wrist x-ray analysis, together with inadequate
reliance on other age assessment processes, was the prolonged detention,
including in adult correctional facilities, of young Indonesians who it is now
accepted were, or were likely to have been, children at the time of their
apprehension.

I recognise that in late 2011 Commonwealth agencies stopped relying on wrist
x-ray analysis where there was no other probative evidence of age; made
increased efforts to obtain documentary evidence of age from Indonesia and
modified their opposition to weight being given to evidence from Indonesia. At
the same time, the Department of Immigration and Citizenship commenced to
conduct focused age interviews with young Indonesian crew members who said that
they were children and now only refers for criminal investigation those who are
assessed by this process to be adults. These factors have led to a significantly
improved approach to the assessment of whether young Indonesians suspected of
people smuggling are older than 18 years of age – one which is less likely
to lead to errors and therefore less likely to result in breaches of the rights
of children.

Moreover, on 2 May 2012, the Attorney-General announced that a review would
be conducted by AGD of the cases of 22 individuals identified by the Commission
and the Indonesian Embassy as having been convicted of people smuggling offences
in circumstances where substantial reliance had been placed on wrist x-ray
evidence, or where age was raised as an issue but ultimately not pursued. The
review involved further collaboration between the Commonwealth agencies, as well
as the AFP’s engaging with the Indonesian National Police to seek verified
age documents from Indonesia, and DIAC conducting age assessment interviews in
order to assess retrospectively the ages of crew at their time of arrival in
Australia. During the course of the review, its ambit was extended to include
the re-examination of the cases of a further six individuals. The outcome of the
review was announced on 29 June 2012. Of the 28 crew whose cases were
re-examined as part of the review, 15 individuals were released early on license
on the basis that there was a reasonable doubt that they were over 18 years of
age at the time they were apprehended; a further two individuals were released
early on parole; three crew completed their non-parole periods prior to the
commencement of the review; and eight crew were assessed as likely to have been
adults at the time they were apprehended.

The recommendations of this report are intended to assist in creating a
lasting environment in which the rights of young Indonesians suspected of people
smuggling are respected and protected in every interaction they have with
Australian authorities.

It is my hope that this Inquiry will additionally lead to mature reflection
on the strengths and weaknesses of our criminal justice system more generally.
The Inquiry has revealed that this system may be insufficiently robust to ensure
that the human rights of everyone suspected of a criminal offence are respected
and protected.

To this end, I urge all of the agencies involved to give consideration to how
the human rights of this cohort of young Indonesians came to be breached in the
ways outlined in this report. Careful consideration should also be given to the
steps that need to be taken to ensure that in the future Australia does respect
the human rights of all who comes into contact with our system of criminal
justice.

Catherine Branson QC

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