ࡱ> StRg 5bjbjVV 4Tr<r<#M + XJ@8\2$'VVlpT'V'V'V'V'V'V'$s)%,z'z''---T'-T'--:6#,#@1:qb# @''0'l#.,.,##, & -z'z'-',  : Submission to AHRC Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children I would like to begin by welcoming this important inquiry and I thank the Commission for providing the opportunity for me to contribute. I hope that this inquiry will serve as an important step towards recognising and rectifying the completely unacceptable situation we currently have where Indonesian children have been convicted of people smuggling offences as adults and placed into Australian adult correctional facilities for significant periods of time. As a Member of the Legislative Council of Western Australia, and as the Greens (WA) spokesperson on 鱨վ and Youth, this issue has been brought to my attention on numerous occasions by a range of concerned stakeholders who have shared with me the distressing stories of some of the young Indonesians currently incarcerated in Western Australian jails. The media has already drawn attention to some of these individuals whose age is in dispute, including Hadi an Indonesian boy in Hakea prison who claims that he is 16 years of age. I would also draw your attention to [name], an Indonesian currently being detained in Albany Prison. According to advocates, [name] was around 13 years of age when he was convicted. Although an age determination was made in the District Court, it is alleged that evidence subsequently obtained from his school and statements from his family show his age to be much younger than was proven by bone scans. [Name] has now been in Albany Prison for more than two years; a completely inappropriate place for a 15 year old, with no contact with his parents and no responsible adult guardian. I believe that the Australian legal and administrative systems have failed boys like Hadi and [name]. Although the Terms of Reference of this inquiry specifically relate to the acts and practices of the Commonwealth, the situation faced by Indonesian individuals who claim to be children is a result not only of the actions of the federal government, but also the acts and practices of state governments. State governments are tasked with detaining the individuals of concern, and therefore they determine the places of detention and the conditions of detention. They are also responsible for the provision of guardians and legal advice, assistance and representation. Age assessment process The current age determination process used by the Australian Federal Police (AFP) in people smuggling cases requires a wrist x-ray to be taken of all persons who claim to be under the age of 18. The AFP rely upon a single medical expert to interpret the x-ray based on a study undertaken by Gruelich and Pyle in 1959. The accuracy of this process has been attacked by other experts in the field, and reliance on this method has been discontinued in the United Kingdom.   The inadequacy of this approach is also clearly demonstrated by the outcomes of proper investigations into these individuals backgrounds. Since 2006, four Indonesian nationals detained in Western Australian adult prisons have later been found to be under the age of 18 at the time of their alleged offence. Whilst two individuals were released in November 2011 after their ages were reassessed, there remain 14 Indonesian nationals in Western Australian prisons whose age is under investigation by the Indonesian Consulate. During the course of the investigations and for the purpose of decisions concerning the prosecution of people smuggling or related offences, the AFP and the Commonwealth DPP must be required to locate more credible evidence on which to assess a persons age. Our justice system is predicated on a presumption of innocence. This presumption must also extend to giving the benefit of the doubt in questions about age. Section 233C of the Migration Act 1958 (Cth) requires proof on the balance of probability that a person was under 18 years of age when the offence was committed. In my opinion, this burden of proof is contrary to the presumption of innocence that is a fundamental tenet of our system. Legal Proceedings & the provision of legal advice I am concerned that there is the possibility that individuals suspected of people smuggling offences are not being provided with adequate legal representation to put forward their case, either during the age determination process, or during trial for the offence. In 2010, the WA Office of the Inspector of Custodial Services reported that [o]nly four out of the 32 [Indonesian] prisoners interviewed during the inspection appeared properly aware of what was happening in their court cases. In addition, I am aware of recent allegations that certain high profile lawyers have offered pro bono assistance to individuals awaiting trial, and applications made to Legal Aid WA. These applications have been denied by Legal Aid WA. Furthermore, allegedly, individual prisoners are not being assigned a specific Legal Aid lawyer to represent them but are made to meet with, and repeat their stories to, various different lawyers throughout their cases. I am also aware of allegations that adequate interpreters are not being provided at all meetings with lawyers. The right to have adequate time and facilities for the preparation of ones defence and to communicate with counsel of ones own choosing is enshrined in the International Covenant on Civil and Political Rights (Article 14(3)(b)). However, these allegations suggest that this right has been seriously impaired for individuals suspected of people smuggling offences, including those that claim to be children. Determining place of detention The Department of Corrective Services in Western Australia is responsible for detaining federal prisoners, under an agreement with the Commonwealth Government. The Department of Corrective Services advise that the department relies upon bone density age verification tests made by the Australian Federal Police and documentation supplied by the courts, to ensure that remanded prisoners are 18 years of age or older. As discussed, this evidence is insufficient for proving ages, and, it follows, it is also insufficient for determining the place of detention. The decision regarding in which facility to detain so called people smugglers should be made after having given appropriate consideration to all the factors involved including the asserted age of the detainee. Provision of guardians I am concerned that the plight of individuals claiming to be children is being ignored by government welfare agencies whose responsibility it is to provide protection, guardianship and care to children not under the care of parents or other appointed guardians. The Western Australian Department of Child Protection (DCP) claims not to have jurisdictional responsibility for the welfare of these detainees, despite a clear mandate for protecting all children in Western Australia that have suffered, or are likely to suffer, harm as a result of the childs parents being unable to provide, or arrange the provision of, adequate care for the child. Under the 鱨վ and Community Services Act 2004 (WA), DCP has jurisdiction over all children, including, where evidence of age is not available, those who are apparently children. For these purposes, the benefit of the doubt should be given to all individuals who claim to be under the age of 18. When an individuals age has been put into question but before an age determination has been made, DCP has a responsibility to act in the interests of that individual. Even after an age determination is made by another government agency, the definition of child in the 鱨վ and Community Services Act 2004 (WA) is broad enough to incorporate those individuals within DCPs jurisdictional mandate. Moreover, DCP refuses to consider whether it has any responsibility for these children unless another department be it the Department of Corrective Services or Commonwealth authorities refers a specific case to them. DCP was designed to protect children in Western Australia from all forms of harm. To do so DCP needs to independently assess the ages and welfare of individuals in the state. Conclusion Australia recognises the special rights of children under the UN Convention on the Rights of the Child. I believe that we are breaching the rights of children because of inappropriate policies and procedures concerning the treatment of individuals suspected of people smuggling offences who say that they are children. There are grave issues around the age assessment process, legal proceedings and the provision of legal advice, determination of the place of detention, conditions of detention, and the provision of guardians, all of which need to be urgently addressed at Commonwealth and state level. Once again, I welcome the AHRCs inquiry into this serious matter, and I thank the AHRC for the opportunity to make this submission.  Family insist that people smuggler in jail is a child The West Australian, 27 June 2011, page 3.  Australian Federal Police, Blue Line: Clarification on the AFP age determination process Thursday January 6 2011  HYPERLINK "http://www.afp.gov.au/media-centre/news/afp/2011/january/clarification-on-the-afp-age-determination-process.aspx" http://www.afp.gov.au/media-centre/news/afp/2011/january/clarification-on-the-afp-age-determination-process.aspx  See Australias Commonwealth Parliamentary Library, Determining the ages of people smugglers  HYPERLINK "http://parliamentflagpost.blogspot.com/2011/11/determining-ages-of-people-smugglers.html" http://parliamentflagpost.blogspot.com/2011/11/determining-ages-of-people-smugglers.html  See Australias Commonwealth Parliamentary Library, Determining the ages of people smugglers  HYPERLINK "http://parliamentflagpost.blogspot.com/2011/11/determining-ages-of-people-smugglers.html" http://parliamentflagpost.blogspot.com/2011/11/determining-ages-of-people-smugglers.html  Hon Simon OBrien MLC, Minister for Finance representing the Minister for Corrective Services, Parliament of Western Australia Hansard, Legislative Council, Wednesday 30 November 2011, page 83   HYPERLINK "http://www.watoday.com.au/national/boys-in-an-adult-nightmare-20111105-1n1d3.html" http://www.watoday.com.au/national/boys-in-an-adult-nightmare-20111105-1n1d3.html;  HYPERLINK "http://www.smh.com.au/national/disabled-boy-freed-from-adult-jail-20111112-1ncv2.html" http://www.smh.com.au/national/disabled-boy-freed-from-adult-jail-20111112-1ncv2.html   HYPERLINK "http://www.abc.net.au/news/2011-10-29/casualties-in-the-war-against-smugglers/3607994/?site=westqld" http://www.abc.net.au/news/2011-10-29/casualties-in-the-war-against-smugglers/3607994/?site=westqld:  S 233C Migration Act 1958 (Cth)  Office of the Inspector of Custodial Services, Report No 63 Report of an Announced Inspection of Hakea Prison, April 2010, paragraph 5.15.  Hon Simon OBrien MLC, Minister for Finance representing the Minister for Corrective Services, Parliament of Western Australia Hansard, Legislative Council, Thursday 24 March 2011, page 2049.  Hon Helen Morton MLC, Minister for Child Protection, Western Australian Parliamentary Hansard, Legislative Council, Wednesday 30 November 2011, page 22.  S 28(2)(c) 鱨վ and Community Services Act 2004 (WA)  Section 3 鱨վ and Community Services Act 2004 (WA)  Hon Helen Morton MLC, Minister for Child Protection, Western Australian Parliamentary Hansard, Legislative Council, Wednesday 30 November 2011, page 22.      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