ࡱ> TXQRSg VAbjbjVV 4r<r<:78 !y"""##$`c$$$xxxxxxx$O|x-$$$$$x##yH , , ,$##x ,$x , ,jp# hK'lFxgyHy$m*ppJ8q$$ ,$$$$$xx ,$$$y$$$$$$$$$$$$$ : Inquiry into the treatment of individuals suspected of people smuggling offences who say they are children Submission on behalf of Legal Aid NSW to the australian human rights commission  The Legal Aid Commission of New South Wales (Legal Aid NSW) is an independent statutory body established under the Legal Aid Commission Act 1979 (NSW) to provide legal assistance, with a particular focus on the needs of people who are economically or socially disadvantaged. Legal Aid NSW provides information, community legal education, advice, minor assistance and representation, through a large in-house legal practice and private practitioners. Legal Aid NSW also funds a number of services provided by non-government organisations, including 35 community legal centres and 28 Womens Domestic Violence Court Advocacy Services. People smuggling proceedings have been conducted for more than 10 years in the Northern Territory and Western Australia. Recently, as a result of agreement between Attorneys General at State and Commonwealth levels, a large number of individuals suspected of people smuggling have been sent to NSW and other states for prosecution. NSW has received 106 individuals who have been charged with people smuggling offences. Legal Aid NSW has provided legal representation for these individuals through its inhouse practice and private practitioners. 鱨վ 15 individuals charged with people smuggling offences have told their legal practitioners that they were under 18 at the time they were apprehended. Legal Aid NSW has previously made a submission to the Commonwealth Senate Standing Committee on Legal and Constitutional Affairs, which was seeking comment on the Crimes Amendment (Fairness to Minors) Bill 2011. This submission is available at:  HYPERLINK "http://www.aph.gov.au/Senate/committee/legcon_ctte/fairness_for_minors/submissions.htm" http://www.aph.gov.au/Senate/committee/legcon_ctte/fairness_for_minors/submissions.htm. The Legal Aid NSW response to the Commission's terms of reference for the Inquiry into the treatment of individuals suspected of people smuggling offences who say they are children, includes case studies and recommendations. Legal Aid NSW welcomes the opportunity to provide these submissions. Should you require further information, please contact [name and contact details removed] or [name and contact details removed]. Comments on the Terms of Reference assessments of the ages of the individuals of concern made by or on behalf of the Commonwealth for immigration purposes, including by any officer as defined by section 5 of the Migration Act 1958 (Cth) Legal Aid NSW does not deal directly with individuals of concern when they are in immigration detention in the Northern Territory or Western Australia. However, Legal Aid NSW has concerns about the process of age assessment made by or on behalf of the Commonwealth for immigration purposes, and the impact of that process. The Department of Immigration and Citizenship (DIAC) interviews all individuals soon after arrival in immigration detention. These interviews are conducted using a pro-forma set of questions that are designed for individuals seeking asylum, one question being the age of the detainee. This process and the questions are not appropriate for individuals suspected of people smuggling, for a number of reasons. First, Legal Aid NSW understands that these interviews are conducted without the detainee being given the opportunity to seek legal advice. While individuals suspected of a criminal offence have a right to silence, detainees are advised by DIAC that they are expected to answer all questions. Second, the pro-forma questions are premised on assumptions, including the assumption that the individual intended to come to Australia. Contrary to this, it is the experience of Legal Aid NSW that most clients charged with people smuggling did not know that they were coming to this country. In addition, answers given in interviews can be confused by lack of understanding. Interpreters in Bahasa Indonesia, the official language of Indonesia, are often used to interview individuals who come from remote regions of Indonesia because it is assumed that they speak that language fluently. In a recent NSW District Court trial a linguist gave evidence that the Indonesian dialect of the accused was as far from Bahasa Indonesia as contemporary English is from Eskimo, and that the regional dialect he spoke was as far from Bahasa Indonesia as contemporary English is from Chaucerian English. Answers given in interviews might also reflect the lack of legal advice about the consequences of the interview process. Case study 2 demonstrates an immature young person inflating his age to get access to cigarettes or work. While the Australian Federal Police (AFP) and the Commonwealth Department of Public Prosecutions (CDPP) make their own decisions about whether to investigate and prosecute an individual (or whether to discontinue proceedings because the person is a child), and while an admission made at interview without the benefit of legal advice would generally render the interview inadmissible at a final trial of the substantive charge, the CDPP frequently rely on DIAC interviews at age determination proceedings. Given that a person suspected of people smuggling is unlikely to face charge if Australian authorities accept that they are under the age of 18, it is vitally important for the Commonwealth to give priority to the process of age assessment as soon as possible after the child arrives in immigration detention and that the child be released as quickly as possible. There is no justification for delaying the steps that need to be taken for the purpose of age assessment until after the child has been charged. Delaying age assessment must be considered in the context of the Migration Act 1958 (Cth) which provides that a non-citizen who has travelled to the migration zone and who is suspected of having committed an offence may be detained for the purpose of deciding whether to institute proceedings, but does not set any time limit on the period of detention. Legal Aid NSW has clients who have been detained up to 11 months without charges. The average length of time of immigration detention without charge for people who are brought to NSW to be tried is presently about four months. It appears that the waiting time before charge varies with the workload and resources of the Australia Federal Police (AFP). assessments of the ages of the individuals of concern during the course of the investigations of the people smuggling or related offences of which they were suspected As the AFP is responsible for investigation of people smuggling or related offences, albeit at the direction of the CDPP at the time of prosecution, the response to this term of reference focuses on the acts and practices of the AFP. Wrist x-rays Ethical issues Apart from the issue of reliability of evidence of wrist x-rays for age assessment which is discussed below in response to term of reference c), the use of wrist x-rays as a method of investigation for age assessment raises significant ethical issues. A letter from associations of medical experts to the Immigration Minister, Mr Chris Bowen, advised that they consider "that it is unethical to expose a young person to x-rays for purely administrative reasons", and further: "It is unethical to use x-rays for non-clinical purposes (immigration control), without informed consent, and where there is no therapeutic benefit." Legal Aid NSW has been advised by the CDPP that Justice Health NSW will no longer conduct wrist x-rays because of ethical concerns. It is notable that the Royal Australian and New Zealand College of Radiologists was a signatory to this letter, and the experts that the prosecution rely on are all radiologists. Consent to wrist x-rays Regulation 6C of the Crimes Regulations 1990 prescribes the procedure for determining a person's age; by wrist x-ray. Division 4A of the Crimes Act 1914 sets out the process for an investigating official to obtain consent for the x-ray from the person, including from unaccompanied children. Legal Aid NSW has no information about the circumstances in which a request for consent is made when the x-ray is taken before a client is transferred to NSW for prosecution. However, given the legal and ethical issues that arise in the context of wrist x-rays, it would be appropriate for the client to receive legal advice to ensure that the consent is an informed consent. Dental x-rays Dental x-rays have not, to our knowledge, been used routinely, but have been offered to a number of our clients who claim to be under age after charge. The letter from associations of medical experts to the Immigration Minister, Mr Chris Bowen, referred to above does not distinguish the use of dental x-trays from wrist x-rays for the purpose of age assessment: It advised: "We consider x-trays of teeth and wrists to assess skeletal maturity should be used only where a therapeutic relationship has been established between the doctor and patient." It is the experience of Legal Aid NSW, that children suspected of people smuggling have not consented to dental x-rays. Clients are advised of the health and ethical issues concerning this method of investigation and the unreliability of dental x-rays as evidence of age assessment. Documentary and other evidence of age Birth certificates Legal Aid NSW is aware that the AFP has sought birth certificates from Indonesia in the course of investigations of an individual suspected of people smuggling where the age is contested. However, birth certificates are not usually available. Registration of a birth has only recently become a legal requirement in Indonesia and very few births are registered. Legal Aid NSW inhouse solicitors report that very few clients charged with people smuggling have birth certificates. All come from impoverished families and many are from the remote regions. Travelling to the nearest government office to register a birth can be prohibitively expensive. As indicated above, many are not fluent in Bahasa Indonesia, and this can add another layer of difficulty in registering a birth. Obtaining material from family and local officials Legal Aid NSW is aware of a few cases in which the AFP has travelled to Indonesia obtained documents other than birth certificates that could be used as evidence of age. However, in the vast majority of cases the AFP does not do this. In a few cases the AFP has travelled to Indonesia to confirm the information obtained by the defence. Possibility of AFP gathering affidavits and local village records Legal Aid NSW is aware that in a very few cases the AFP and CDPP have obtained village records beyond attempting to obtain birth certificates. Generally, however, it has been left to the defence to do this. A question arises as to whether the AFP should be doing this routinely. If it was to be done by the AFP presumably this would be through some form of cooperation with Indonesian police which would be problematic. Most of our clients are highly fearful of authorities. The defence is best placed to earn the trust of these clients and their families, and so gain access to the most accurate information. This further demonstrates the need for individuals of concern to have access to legal advice as soon as they are detained. Cooperation with foreign police authorities requires the approval of the Attorney General. This process is likely to add further significant delays. GENERAL A recent UNICEF report concludes that there is no single reliable medical method of determining age. It stresses the importance of obtaining material from the child's place of origin and using a multi-disciplinary approach and comments on international best practice guidelines, as follows: The UN High Commissioner for Refugees (UNHCR) has developed two significant sets of guidelines relevant to the issue of age assessment. In its Guidelines for Unaccompanied 鱨վ Seeking Asylum, UNHCR suggests that assessments should take into account both the physical appearance and psychological maturity of the child, emphasize the need for accuracy, safety, and dignity in the use of medical assessments, and recommend that authorities acknowledge inherent margins of error in medical assessments (UNHCR, 1997:05). The Council of Europe Convention on Action against Trafficking in Human Beings (2005) also refers to the issue of age dispute and states that when the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age (Art. 10(3)). Basing its guidance on the UNHCR guidelines and elements of the UN Committee on the Rights of the Child's General Comment no. 6 (paragraphs 31 & 95), the Separated 鱨վ in Europe Programme's Statement of Good Practice provides detailed recommendations for the practice of age assessment, stating that: Age assessment procedures should only be undertaken as a measure of last resort, not as standard or routine practice, where there are grounds for serious doubt and where other approaches, such as interviews and attempts to gather documentary evidence, have failed to establish the individual's age. If an age assessment is thought to be necessary, informed consent must be gained and the procedure should be multi-disciplinary and undertaken by independent professionals with appropriate expertise and familiarity with the child's ethnic and cultural background. They must balance physical, developmental, psychological, environmental and cultural factors. It is important to note that age assessment is not an exact science and a considerable margin of uncertainty will always remain inherent in any procedure. When making an age assessment, individuals whose age is being assessed should be given the benefit of the doubt. Examinations must never be forced or culturally inappropriate. The least invasive option must always be followed and the individual's dignity must be respected at all times. Particular care must be taken to ensure assessments are gender appropriate and that an independent guardian has oversight of the procedure and should be present if requested to attend by the individual concerned. The procedure, outcome and the consequences of the assessment must be explained to the individual in a language that they understand. The outcome must also be presented in writing. There should be a procedure to appeal against the decision and the provision of the necessary support to do so. In cases of doubt the person claiming to be less than 18 years of age should provisionally be treated as such. An individual should be allowed to refuse to undergo an assessment of age where the specific procedure would be an affront to their dignity or where the procedure would be harmful to their physical or mental health. A refusal to agree to the procedure must not prejudice the assessment of age or the outcome of the application for protection. (Separated 鱨վ in Europe Programme, 2009:25) assessments of the ages of the individuals of concern for the purpose of decisions concerning the prosecution of the people smuggling or related offences of which they were suspected The response to this term of reference focuses on the acts and practices of the CDPP as the Commonwealth agency responsible for decisions concerning prosecution of the people smuggling or related offences. Paragraphs 2.15 to 2.18 of the Prosecution Policy of the Commonwealth govern the prosecution of children. As a matter of practice, a senior lawyer decides whether to prosecute a child for a serious Commonwealth offence. As a general rule if a person charged before a NSW is found to be a child, their matter is transferred to the 鱨վ's Court (where the mandatory minimum penalty need not be imposed). The CDPP has adopted a humane approach of withdrawing charges against those charged with aggravated people smuggling who it accepts are under 18, rather than simply having their matters transferred to the 鱨վ's Court. However, in practice, the delays in charge and prosecution set out in this submission mean that many children are spending significant periods of time in adult custody before they are returned to immigration custody in preparation for deportation. Wrist x-rays Despite there being well documented and published evidence to the contrary, it is the experience of Legal Aid NSW that the CDPP will rely on wrist x-ray evidence of assessment of age as conclusive in support of decisions concerning prosecution of the people smuggling or related offences. Issues in relation to the unreliability of wrist x-rays as evidence of age and the way in which the CDPP present this evidence in legal proceedings in which evidence concerning the ages of individuals of concern was, or was intended to be adduced, are set out in response to term of reference e). Documentary and other evidence of age It is the experience of Legal Aid NSW that the CDPP is prepared to withdraw matters when persuaded of evidence obtained from Indonesia that an individual suspected of people smuggling was under 18 at the time of apprehension, although this may contradict wrist x-rays as evidence of assessment of age. Legal Aid NSW is aware of approximately 15 matters in which age was identified as an issue and believe that 12 matters have been withdrawn so far, due to birth certificates, affidavits, or other information obtained by the defence from Indonesia. NSW defence lawyers have travelled to the remote Indonesian home villages of young clients and have had some success in obtaining "Family Cards", schooling and other records from family or local officials which has assisted with determining the age of our clients, and/or affidavits from local officials and family members stating the date (or year) of birth. These documents have generally been accepted by the CDPP as evidence of the young person's age. Travelling to remote Indonesian villages is, however, costly and slow. During this period of investigation by the defence young people are detained in adult prisons. On some occasions Legal Aid NSW has been able to obtain documentary and other evidence of age through Indonesian contacts without travelling to Indonesia, but generally this is not possible. For some young people it has not been possible to locate families. It is the experience of Legal Aid NSW that those who organise people smuggling tend to target the poorest and most vulnerable people. Most of the Legal Aid NSW clients started work at age 12 or 13. Some have lived apart from their families for a long time because of work and, as a consequence, they have lost contact with their families and their village. The Indonesian Consulates have been very cooperative in providing assistance in obtaining this material where possible. decisions concerning whether, and the processes and procedures used, to: facilitate contact between parents/guardians and the individuals of concern; and contact and obtain information relevant to age assessment from parents/guardians of the individuals of concern; Contact between parents/guardians and individuals of concern It is the experience of Legal Aid NSW that contact with family is difficult for all Indonesian clients in custody (adult or child) charged with people smuggling offences. These clients are usually from remote Indonesian villages. It is rare for there to be a telephone in the family home. In some villages one person may have a telephone. If a client is able to make a telephone call to their family, they must earn money to pay for the call by working in the gaol. These calls are expensive. In addition, in the experience of Legal Aid NSW most clients in custody charged with people smuggling offences do not read or write in their native tongue, and literacy problems make written correspondence impossible. Case study 1 indicates some of the problems involved. information from parents/guardians of individuals of concern This issue is addressed in response to term of reference c). the preparation for and the conduct of legal proceedings in which evidence concerning the ages of the individuals of concern was, or was intended to be, adduced Wrist x-rays Unreliability of wrist x-rays as evidence of age The main concern that Legal Aid NSW has about the use x-rays is their unreliability. The unreliability of wrist x-ray technology is comprehensively detailed by Bowen DCJ in R v Daud [2011] WADC 175. The Annexure to this document contains relevant quotes. Notably, the letter from associations of medical experts to the Immigration Minister, Mr Chris Bowen, referred to above advised that the Gruelich and Pyle method (the technique for evaluating the bone age of children by using a single frontal radiograph of the left hand wrist) "is unreliable and not validated for this purpose". The letter went on to note: "For these reasons this practice is not used by the UK and other European governments, nor the international Olympic committee or FIFA." The use of wrist x-rays to determine age has been rejected by courts in immigration matters because of unreliability. The unreliability of wrist x-rays for determining age has been recognised in the recent UNICEF report on page 5, which concludes that there is no single reliable medical method of determining age. Role of the CDPP Despite there being well documented and published evidence to the contrary, it is the experience of Legal Aid NSW that the CDPP will present the wrist x-ray evidence of assessment of age as a medical fact. It is the experience of Legal Aid NSW that the CDPP rarely presents opposing evidence. Nor does has it make concessions when presented by the defence with evidence of the unreliability of x-ray from radiologists, paediatric radiologists or medial statisticians. This position appears to be contrary to the NSW Solicitors Rules and Bar Rules which state: A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts. In addition, the Prosecution Policy of the Commonwealth at paragraph 2.7 states that in deciding whether to prosecute and in evaluating the evidence, "the prosecutor must be prepared to look beneath the surface of the statements". Legal Aid NSW submits that, consistent with this policy and the obligations of prosecutors, it is incumbent on the CDPP to apply a balanced approach to all the evidence. Continuing role for wrist x-rays with informed consent and legal advice Legal Aid NSW is aware, however, that a number of Indonesian children have been sent home very quickly after an x-ray was conducted. If the procedure was entirely prohibited then this benefit would not exist. Some children may make the choice to have the procedure. It is essential, however, that they obtain very clear advice, in language they can understand, about the health risks involved. The need for legal advice is discussed below. Legislation concerning wrist x-rays Impact on decisions of prosecutors and magistrates The fact that "radiograph of the hand and the wrist of the person whose age is to be determined" (wrist x-rays) is the only proscribed procedure for age assessment gives this technology a prominence and credibility, despite the fact that its reliability has been heavily disputed. It is the experience of Legal Aid NSW that prosecutors and magistrates have interpreted regulatory proscription of this technology as requiring it to be given undue weight in assessment of age. This approach has been taken notwithstanding that prosecutors and magistrates are made aware that it has been rejected as unreliable by the medical associations to which prosecution experts belong. The extent to which the existence of the regulation appears to have influenced the conduct of proceedings by the DPP in terms of the reliance on the evidence wrist x-rays for age assessment is illustrated in this excerpt of submissions of the CDPP in proceedings at Bankstown Local Court on 20 September 2011. They read: In her report Dr [the defence paediatric radiologist] refers to a number of limitations when using the Atlas and skeletal maturation as an estimator of chronological age. [The paediatric radiologist] opines that "a holistic approach is require in order to try to establish the chronological age of the Defendant . . However, at the outset, it must be noted that the statutory regime in Part 1AA, Division 4A of the Act, and the corresponding Regulations, specifically provides for the use of an x-ray of the hand and wrist as being the prescribed procedure for determining a person's age. No other prescribed procedure, apart from an x-ray of the hand and wrist, is referred to in regulation 6C. When a defence solicitor in NSW Local Court referred to the letter from medical associations to the Immigration Minister, Mr Chris Bowen, referred to above which advised that, in their opinion, wrist x-rays evidence of age assessment "is unreliable and not validated for this purpose" the magistrate responded: "Well, we all know it's unreliable". However, that and other magistrates have continued to accept the wrist x-ray evidence of age assessment in subsequent matters. In giving reasons for decision in age determination proceedings in NSW Local Courts, several magistrates have referred to the existence of the regulation, suggesting that Parliament must have had some reason for making the regulation and, on that basis, have gone on to accept the evidence of the prosecution radiologist. Burden of proof It is unclear as to who bears the onus of proof in age determination proceedings. There is currently a draft Bill before the Senate that proposes the prosecution bear the onus of proof to disprove an assertion that the accused was under 18 at the time of apprehension. Legal Aid NSW supports this approach. The AFP and CDPP have not been proactive in obtaining the best evidence of birth date from the client's family and the defence face considerable difficulties in proving that an Indonesian client was under 18 at the time of apprehension, as outlined above. Standard of proof In Abdulla v R the High Court confirmed that as the age of a defendant goes to jurisdiction the issue is to be determined on the balance of probabilities consistent with Thompson v R (1989) 169 CLR 1. Legal Aid NSW is of the view that the standard of proof should be beyond reasonable doubt. It is the experience of Legal Aid NSW that the standard of proof on the balance of probabilities appears to influence acceptance by Local Court magistrates of wrist x-ray as evidence of age over concerns about reliability, and over concerns about statistical problems. the detention, including the determinations of the places of detention and the conditions of detention, of the individuals of concern Unless and until the CDPP are persuaded that an individual charged with people smuggling is under 18, the CDPP prosecute them as an adult. As a result, if they are refused bail, they are held in adult prisons and juvenile detention is not an option. If an Indonesian national charged with people smuggling is granted bail, DIAC is responsible for decisions regarding their place of detention. The current practice of the CDPP is not to oppose bail for individuals charged with people smuggling who claim to be under 18. In a number of states this has meant that groups of Indonesian young people granted bail have been housed in community immigration detention, outside formal detention centres. DIAC has advised Legal Aid NSW practitioners that it could not guarantee where the young people would be held if granted bail. They have alternatively advised Legal Aid NSW practitioners that the young person would be moved to Darwin. Legal Aid NSW understands that DIAC have nowhere in Sydney to house unaccompanied young people. Legal Aid NSW is also aware of a recent case in which a young Nepalese national (not charged with people smuggling) released to bail was removed to a remote WA facility, which resulted in the inability of the NSW practitioner to obtain instructions. For these reasons, so far as Legal Aid NSW is aware, no bail applications have been made for individuals charged with people smuggling who claim to be under 18. DIAC should ensure that it is able to house young people who are charged and claim to be under 18 in appropriate community detention in the capital city where they are being tried. the provision of guardians or other responsible adults to ensure that the interests of the individuals of concern, including with respect to age assessment, were protected In criminal proceedings legal practitioners act on the direct instructions of the all clients, including children and it is the role of the legal practitioner to ensure that the legal interests of their client are protected. The next friend or guardian ad litem model is not appropriate in the criminal jurisdiction. Legal Aid NSW submits that AHRC should identify an existing government authority to oversee the welfare of the individuals of concern while detained in Australia. the provision to the individuals of concern of legal advice, assistance and representation, including with respect to age assessment Legal Aid NSW recommends that there be a statutory obligation on DIAC to provide all individuals suspected of people smuggling with immediate access to a lawyer. Because of the language problems involved in Indonesians accessing lawyers, DIAC should be required to notify the legal aid commission office closest to the place of detention of the names and locations of each individual and such notification should be required each time they are moved. We understand that Legal Aid in Darwin has experienced frustrations in attempting to provide legal assistance to people detained on suspicion of people smuggling before they are charged. Without knowing their names, legal aid solicitors cannot request permission to visit them, as approval for a visit requires the name of the inmate. Immediate advice for all people suspected of people smuggling is essential so that lawyers can obtain instructions about their age. If they are under 18, lawyers need to be able to advise them on the risks and benefits of wrist x-rays and assist in obtaining age documentation, like Family Cards and affidavits from parents as early as possible. There are however, other benefits to legal visits. Lawyers can advocate for people with health problems. People in custody often report that they are not receiving the care they believe they need for their health problems. It is not uncommon for solicitors to informally contact health care providers regarding these issues, particularly where clients do not speak English. Lawyers can also assist in contacting family, and bringing people before a court without inordinate delays. any other matters incidental to the above terms of reference. NO LIMIT TO TIME IN IMMIGRATION DETENTION BEFORE CHARGE As stated above, there are significant delays for both adults and children in immigration detention. At present individuals are held in immigration detention for about 4 months, although clients have been held up to 11 months. In case studies one and four outlined in this submission the two boys were held in immigration detention for 7 months without charge. The AFP did not interview one of the boys for 6 months. Once charged the committal and trial process can then take over a year. Section 189 of the Migration Act 1958 requires officials to detain all unlawful non-citizens, including those people suspected of people smuggling. Section 250 allows the Minister to hold indefinitely, for the purposes of prosecution, any non-citizen entering the migration zone and on a boat suspected of being used in connection with the commission of an offence. In contrast, NSW and Commonwealth legislation enables police to hold individuals arrested on suspicion of committing an offence for 4 hours, further detention requires a warrant issued through a court. Even in relation to terrorism offences there are time limits on detention and court involvement in extending detention for investigation. Legal Aid NSW suggests that section 250 should be repealed, or alternatively amended to impose severe time limits on detention prior to charge and to provide for judicial oversight of detention. The AFP and CDPP argue that this detention period is necessary to prepare a brief of evidence and obtain witness statements prior to the decision to charge the individual. This is not the case in other criminal proceedings. If a person arrives at Sydney Airport with drugs in their suitcase, they are interviewed, then immediately charged. If subsequent evidence establishes their innocence charges are then dropped. The law allows police to charge a person they reasonably suspect of committing an offence. Once identified as a crew member on a boat suspected of people smuggling there is generally sufficient suspicion to charge individuals and immediately bring them before a court. Witness statements can be obtained later, similar to other criminal matters. Mandatory sentencing Mandatory sentencing for adults convicted of people smuggling further delays the court process for individuals charged with people smuggling offences. The majority of those accused will defend the charge, compared with other criminal matters in which about 85% of people plead guilty. Mandatory sentencing, under the Migration Act, provides no incentive for people to plead guilty, because they will receive the same sentence whether they are convicted after trial, or convicted on a plea of guilty. Furthermore mandatory sentencing does not allow judges to take into account the full circumstances of an offence and an offender. DIRECT evidence from the young people Legal Aid NSW has been unable to obtain direct evidence from our child clients (except one, quoted below) as they have been deported after long remands. As the AHRC would be aware, article 12 of the Convention on the Rights of the Child provides "the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law." Should the Inquiry be in a position to visit these young people in their villages, DIAC would be able to provide the addresses given by young people at their entry interviews. CIVIL LIABILITY ISSUES ARISING OUT OF THE DETENTION OF MINORS IN ADULT GAOLS Outlined below are potential civil liability issues arising out of the detention of minors in adult gaols. General legal principles - detention of children in the criminal justice system It is well established in New South Wales law that minors should be treated differently from adults in the criminal justice system, in recognition of the particular vulnerabilities of minors. The 鱨վ's Court of NSW has jurisdiction over most offences alleged to have been committed by children. With respect to the place of detention, the 鱨վ (Detention Centres) Act 1987 (NSW) establishes a careful regime to accommodate the special needs of juvenile detainees. Some of the main features of that regime are: 鱨վ aged under 18 years (and frequently people up to the age of 21) who are on remand, or serving a term of detention or imprisonment, are generally detained in specialist juvenile detention centres rather than adult gaols. In circumstances which are strictly limited by the legislation, the Director-General of the Department of Juvenile Justice may, with the consent of the Commissioner for Corrective Services, transfer a detainee aged 16 or over to an adult gaol. 鱨վ aged 16 or over may also be detained in an adult gaol in the discretion of a specialist 鱨վ's Court, again only in circumstances which are strictly limited by the legislation. Where the 鱨վ's Court orders that a child be committed to an adult gaol on the basis that the child is not suitable for detention in a juvenile detention centre, the order must be reviewed at least once a month by the Minister administering the Crimes (Administration of Sentences) Act 1999 (NSW) and an application may be made for the variation or revocation of the order. There is no provision in the legislation that enables children aged under 16 to be committed to an adult gaol. General legal principles detention of children in the immigration system The Migration Act requires relevant officers to detain non-citizens who are present in the migration zone without holding a visa. Such detention is administrative in nature and is not a punishment for criminal conduct or alleged criminal conduct. This power to deprive persons of their liberty is subject to strict legislative constraints, including a duty to remove from Australia as soon as reasonably possible an unlawful non-citizen who is in detention. The particular vulnerabilities of children in the immigration detention system are recognised in the legislation, which provides that as a principle, the detention of children should only occur 'as a measure of last resort'. These vulnerabilities are acknowledged in the part of the policy manual of the Department of Immigration and Citizenship ('the Department') which deals with the placement of minors in detention. That policy states: A minor is to be detained only as a measure of last resort for the shortest practicable time and in the least restrictive form appropriate to a minor's circumstances. A minor is not to be detained in an immigration detention centre (IDC) for accommodation or processing purposes under any circumstances. A clear plan for resolution of the minor's immigration status must be in place and be actively progressed by the case manager. The policy expressly prohibits minors being housed with people who may pose a threat to their safety or well-being, stated to include people whose visa has been cancelled on character grounds. The Department's policy manual further discusses a number of alternative placement options for minors in immigration detention. There is no discussion of State or Territory correctional centres as one of those options, although such facilities do fall within the definition of "immigration detention" set out in the Migration Act. Appropriate place of detention for people suspected of people smuggling offences who say they are children In the experience of Legal Aid NSW, people who are suspected of people smuggling offences who say they are children, but have not been accepted as such, are initially detained in immigration detention under the Migration Act. Upon being brought before a court, they are refused bail and remanded into custody in an adult gaol. In the experience of Legal Aid NSW, they then remain in custody without being granted visas, such as Bridging or Criminal Justice visas. There appear to be two potential sources of authority for their detention. The first is a decision by an officer of the Department of Immigration and Citizenship to detain the person under the Migration Act, together with a decision (possibly by a different officer of the Department) about the appropriate place of detention. The second is the warrant issued by a court under section 15 of the Crimes Act 1914 (Cth), together with an administrative decision by the relevant State or Territory authority about the appropriate place of detention. A document released by the Attorney-General's Department under the Freedom of Information Act 1982 (Cth) indicates that various agencies are involved in decisions about the detention placement of people suspected of people smuggling offences who claim to be children. It states: Commonwealth agencies including the Australian Federal Police provide information about the age of persons charged to assist corrections agencies to manage that person appropriately. As the Commonwealth does not operate or own any prisons, federal offenders are housed in State and Territory prisons. The States and Territories are responsible for the management and operation of prisons, including the assessment of each prisoner's security classification and whether it is desirable to physically separate certain classes of prisoners, such as minors. Legal Aid NSW is not clear as to how DIAC determines age for the purpose of deciding where to house people in their custody. In relation to our clients, all age-determination by DIAC happens before our clients enter NSW. Before 15 May 2011, Departmental policy stated that if an officer suspected that a person claiming to be a minor may be an adult, the officer must take certain steps including requesting the person's agreement "for an independent health clinician to undertake an assessment of their age". This requirement has been removed from current policy, which now states that: The Department is developing a policy approach to testing age related claims where a person's claims to be a minor are in doubt. In the mean time, officers should use various methods to test whether it is reasonable to accept the person's claim to be a minor, including by asking the person to explain any inconsistencies in their age related claims, requesting documentary evidence to support their claim and making reference to relevant records and country of origin information. Officers should report the suspicion and reasons for the suspicion to the relevant State/Territory Deputy Director, who may refer the person for a psychological assessment but not a physical assessment. People should be given an opportunity to comment on adverse information about their age related claims before a decision is made, decisions must be supported by evidence, and the person should be given reasons for the finding. Where a person previously claimed to be an adult but has since claimed to be a minor, the person should continue to be detained as an adult unless and until evidence is accepted as establishing that the person is a minor. Where the person has never claimed to be an adult and they are claiming to be, or suspected of being, a minor, they should be treated as though they are a minor until their actual age is established. For the reasons explained above, merely requesting a person claiming to be a child to submit their own documentary evidence of that fact is clearly unsatisfactory. Civil liability issues Cases in which children are detained in adult gaols primarily on the basis of unreliable wrist x-ray evidence, only to be later acknowledged as children and released, are clearly contrary to the intent of the protections for children that exist in the criminal justice and immigration law systems. They also raise questions about the lawfulness of the detention and the way in which the children are treated while in detention. Such questions are complex and will turn on the facts of each individual case, but the following general comments may be made: Age is relevant to the question of which court has jurisdiction to hear and determine the matter. If a court exceeds its jurisdiction by hearing and determining a matter on the erroneous basis that the person is an adult, it raises a question about whether an action for damages or compensation may flow from this. In circumstances where an officer of the Department of Immigration and Citizenship has made a decision to take a person into immigration detention and to detain that person in a particular place, such decisions must be made in accordance with the Migration Act. If the person has not been granted a visa (such as a Bridging or Criminal Justice visa) and is detained in a State or Territory correctional centre as a place of immigration detention, then it is likely that the Commonwealth would continue to owe those detainees a non-delegable duty of care. The State and Territory authorities responsible for the management and operation of prisons also owe inmates a duty of care. It may be arguable that the duty has been breached in circumstances where the relevant authorities fail to detain a child in a juvenile detention centre as required (in NSW) by the 鱨վ (Detention Centres) Act 1987. It may be relevant to consider the extent to which the relevant authorities were on notice that the person was claiming to be a child and that the age determination assessment was based on dubious evidence which courts have not accepted. It may be arguable that compensation or damages should flow from a decision to detain the child in the wrong place or at all. False imprisonment is a tort of strict liability. Once a plaintiff has proven that his or her imprisonment was caused by the defendant, the onus shifts to the defendant to show lawful justification for their actions. It is the responsibility of the authorities who deprive a person of their liberty to satisfy themselves that the detention is lawful. The absence of bad faith is irrelevant to the existence of the wrong. In this context, reliance by the detaining authorities on information about age provided by another agency may not be sufficient. The duty of care owed by prison authorities to inmates extends to a duty to take reasonable care to protect an inmate from the violence of other inmates. A study published in 1998 found that one in four inmates between the ages of 18 and 25 said they had been sexually assaulted while in prison, and approximately half said they had been assaulted other than sexually. It is reasonable to consider that children detained in an adult gaol may be even more vulnerable. If children are being detained in adult gaols primarily on the basis of evidence of age which has not been accepted by courts, it raises serious questions about whether the duty of relevant authorities to protect them from other inmates is being met. The removal of such children from Australia is likely to make it very difficult for them to obtain legal advice about whether they have a basis upon which to bring proceedings for damages or compensation, and to bring such proceedings at all. In circumstances where a person has suffered a detriment as a direct result of the workings of government and the detriment cannot be compensated through recourse to legal proceedings, or it would be impractical to do so, an ex gratia payment may be appropriate. Case Study 1 Boy aged 15 on arrival Period of detention The boy arrived in October 2010 and the case against him was discontinued in December 2011. At last contact, he was in immigration detention waiting to be returned to Indonesia. He had been stopped on a boat with two Indonesian boys, one of whom was returned without charge, and an Indonesian adult. This boy was held in immigration detention from October 2010 until May 2011, during which he was not charged. Once charged, he was transferred to Sydney in May 2010 and housed at MRRC, an adult facility. He was moved to Villawood detention centre in late December 2011, after the case against him was discontinued. Instructions to Legal Aid about age This boy stated that he did not know when he was born, but believed he was around 17 years when he arrived in the country. He said he had never celebrated his birthday and never had a birth certificate. Eventually Legal Aid located this boy's mother, a village official and the village head. They provided affidavits and village records which established that he was 15 years on arrival in Australia and his date of birth. Prosecution evidence of age When charged the prosecution recorded his date of birth as 1991. A nominal roll prepared soon after his arrival recorded his date of birth as 1989. The prosecution relied on the evidence of a radiologist who had viewed an x-ray of this boy's wrist to assert that he was 19 or over. Problems with DIAC interview This boy was always interviewed by DIAC in Bahasa Indonesia. However, he was not fluent in that language. He spoke a dialect from Eastern Indonesia. It is not possible to obtain interpreters in Indonesian dialects, so DIAC, the police and his lawyers had to use an interpreter in a language in which he was not fluent. It was not identified by DIAC or the police that he was not fluent in the language in which they interviewed him. He was never asked what language he spoke at home. The CDPP relied on the notes taken at this interview for the purpose of the age determination proceedings. The boy had not been provided with legal advice before the DIAC interview, and was told "you are expected to answer all questions". He was not told of his right to silence in relation to criminal proceedings. The notes of the interview stated that he said: His date of birth was a certain stated day and month in 1989 He had worked as a fisherman for 13 years from 1997 to 2010. [The handwritten notes taken by the DIAC officer were inaccurate. When Legal Aid listened to a recording of the interview it was clear that the DIAC officer said "so you have been working for 13 years?" and he replied "9 years".] He responded "yes" when asked if he attended school for three years from 1995 to 1998. When a Linguist fluent in Bahasa Indonesia and the boy's dialect listened to the recorded interview, he stated that the boy's answers were "not responsive", and that the boy was not fluent in Bahasa Indonesia. Legal Aid is also concerned about "closed" nature of the questions and the possibility of "gratuitous concurrence", where some cultures try to show respect for authority by agreeing with questions. Defence evidence and initial prosecution response In August 2010, Legal Aid provided the prosecution with a report of a paediatric radiologist, and also a copy of the UNICEF report, which questioned the conclusions of the prosecution expert radiologist. There had been significant delay as the defence expert needed to see a copy of the original x-ray which, despite repeated requests, took six weeks and a subpoena to the AFP to obtain. Ordinarily items which form part of the prosecution case are served on the defence. The CDPP declined defence request to withdraw the matter even after being provided with the defence paediatric radiologist's report. The matter was listed for hearing in the Local Court, in light of previous age determination hearings, Legal Aid advised the boy to commit the matter for trial and seek an age determination hearing in the District Court. Legal Aid sought further opinions from other experts, including a medical statistician and the linguist. Given the constraints on the experts' time and the number of experts involved it was not possible to obtain a hearing date until March 2012. In the meantime another barrister obtained the affidavits from the mother and village officials on a trip to Indonesia. Legal Aid had sought contact details for the boy's family in Indonesia. However he had maintained that he did not have any contact details for them [despite actually being in contact with a cousin]. The boy's actions may have arisen out of concern for his mother, embarrassment or fear of bringing officials into contact with his family. This case does however demonstrate the severe difficulties in obtaining information and instructions from young people who suffer embarrassment, fear and severe culture shock at being involved in proceedings. Boy's comments on his own case The boy later stated to Legal Aid through an interpreter: I found living in gaol very tough. I had to share a cell with three other people. All of these other people were adult except me. The prison officers told me that because I was so small, they were worried about my safety in gaol l. I was the smallest person in the gaol. I was scared that I was going to be hit by the other inmates. The Australian inmates were much taller and stronger than me. Whilst I was in gaol, I had to do work as a cleaner. I cleaned the tables and vacuumed the floor. I didn't mind doing this work, as it took my mind off my situation. I was often lonely in gaol and I was worried about my family back in Indonesia. My mother doesn't have a telephone at her house so I couldn't speak to her at all. I was able to call my cousins a few times whilst I was here, but she always got upset when I spoke to her so I didn't call that much because I was worried about her. I was also very sad as I was separated from my family and all the things I was familiar with. It was hard being in a foreign culture and I didn't understand any English. I can't speak any English really. Being in immigration detention was better than the gaol. I have more freedom here in detention. I can walk around quite freely. Whilst in gaol I was put in my cell for many hours every day, and I couldnt' leave. When I was in immigration detention in Darwin I was put with the other Indonesian children. All up there were 16 of us children in Darwin. I coped better in Darwin as I was always hoping that I would soon be sent back to Indonesia. I was sent to gaol in Sydney instead. I found waiting to find out what would end up happening to me very hard. I just did my best to always hope I would get to go home. When I was first apprehended by the Police in Australia, I told the authorities that I didn't think I was over 18. Over the last twelve or so months that I have been in Australia, I have told the Authorities many times that I am still a child. When I first spoke to the Police I was very scared because that was the first time I have ever experiences talking to the Police, here or in my own country. I am very happy now [he was in immigration detention awaiting return to Indonesia at that point] as I have been told I can go home to my family soon. The hardest thing about being in gaol was that I did not have any freedom. Even when I was in immigration detention in Darwin the children I was with and I were watched closely by the detention officers. They said that as we were not adults we had to be supervised more closely than everyone else. I remember that I told both the Police and Immigration officials that I had not yet turned 18. I can't remember when exactly I told them, as I have spent over one year in custody. I should say that I first told the authorities that my date of birth was [the boy named a date of birth in 1993 but it has been redacted to protect his privacy]. I told them this date as this is what the Captain of the boat told me to say. I think the Captain made this date up. Case Study 2 Boy aged 15 on arrival The boy was 15 at arrival and his physical appearance was very young. Counsel advised that he looked about 12 years old. On interception by the Navy the boy informed authorities that he was 14. In a DIAC interview three months later he said he was 20. The boy later told counsel that he said this because he wanted to be able to work and to smoke. He had been held in juvenile detention, but was then moved to adult immigration detention, and eventually transferred to an adult gaol. He was detained for 9 to 12 months in total. Counsel was not able to provide the exact date of arrival or the time in detention. The prosecution relied on the expert opinion of a radiologist, to assert that the boy was 19 or over. The boy's counsel obtained a birth certificate and an affidavit from the local authorities in Indonesia that stated a date of birth that made him 15 at arrival. At the Local Court hearing in September 2011 the magistrate accepted the opinion of the radiologist. The magistrate did not appear to be influenced by the boy's appearance nor did the magistrate accept the birth certificate as evidence of the boy's age. The matter was arraigned in October 2011 before the Chief Judge of the District Court. Counsel arranged for the boy to appear on the audio-visual link in court so the Judge could see him. The Chief Judge requested a senior CDPP officer to attend the court so the officer could view the boy's stature himself and make a decision about whether the prosecution should continue. The matter was adjourned for the CDPP to consider their position. The CDPP did not initially withdraw the matter, however the charges were eventually withdrawn in December 2011. This case demonstrates the different attitudes amongst judges and magistrates in relation to wrist x-ray evidence and documentary evidence. It also demonstrates the importance of receiving legal advice before suspects are interviewed by DIAC. Had the boy received legal advice a solicitor would have advised him that increasing his age was against his long-term legal interests.  Case Study 3 Boy aged 14 at arrival Legal Aid represented a boy who was detained some time before March 2011 and eventually released to immigration detention for deportation in December 2011. He was released after the case against him was discontinued following representations from the defence. At last contact with him the boy was still waiting to be returned home to Indonesia. The boy had consistently told authorities that his date of birth was a particular day in 1997, including. DIAC officers in an interview in March 2011. A wrist x-ray was conducted in Darwin in June 2011 before he was transferred to Sydney and held in adult custody. The prosecution relied on a report of the radiologist's opinion on the x-ray. Legal Aid NSW obtained other expert reports, but did not need to use the report as another barrister had obtained affidavits from his adoptive mother, birth sister and village head, as well as the village head's record book, which showed that his date of birth was consistent with his claim that he was 14 years of age on arrival.  Case Study 4 Boy unsure about his age-under 18 years of age The boy was detained in March 2010. He was interviewed in November 2010 by the AFP (6 months later) and charged in December 2010 (7 months later). During this time he was held in immigration detention in Darwin. He was moved to Sydney for charge. The proceedings were withdrawn in mid-May 2011, some 14 months after his initial detention. When Legal Aid received this matter the prosecution served a report, opining " DOB xx/xx/1993, the bone age is assessed as mature and greater than 19 years of age'. In an interview , attended by a support person from Life Without Barriers, the boy was asked "Are you over the age of 18?" He said, "no". He was later asked, "What is you date of birth". He said "15 of 11 2010". He was then asked, "What year were you born?" He said, "I don't know." He was asked, "How old do you think you are?" He replied, "17". This boy told his solicitor that he had arrived with another young person, and that young person had been sent home. The defence briefed their own paediatric radiologist to comment on expert's report. There was significant delay in being able to brief the defence expert as it took six weeks and three requests to the CDPP to obtain a copy of the x-ray image. There was further delay in proceedings as the CDPP had to brief a different radiologist, who resigned following their evidence and the magistrate allowed the CDPP an adjournment to brief another radiologist. In April the defence wrote to the prosecution asking them to withdraw the proceedings. The proceedings were withdrawn in mid-May 2011, 12 months after his initial detention. This boy did not know his age. He told his solicitor that he felt like he was 17. His solicitor commented that: [This boy] always said that he had a friend [S] who was sent home. He missed his family, He was able to ring once but his parents are seldom at home and do not have a landline or mobile phone, but can be contacted via the neighbour. He shared a cell with an old Vietnamese man who could speak Indonesian. He was working at the gaol.  Recommendations Legal Aid NSW makes the following recommendations for urgent reform. The AHRC recommend that Regulation 6C of the Crimes Regulations 1990, that prescribes wrist x-rays for age determination, be abolished. The AHRC recommend that there be general statutory requirements for DIAC: to allow all people detained in the migration zone and held for criminal investigation access to lawyers within 24 hours of interception; and to notify Legal Aid offices of the names if inmates each time detainees are moved so age determination process can begin early and advice can be given about wrist x-rays. The AHRC recommend that legislation be adopted to clarify that in age determination hearings: A person is assumed to be under 18, if they so claim, unless the prosecution proves otherwise. The standard of proof is proof beyond reasonable doubt. The AHRC recommend that mandatory sentencing in s 236B of the Migration Act be abolished as, while not directed at children, it creates systematic delays that impact negatively on children. The AHRC recommend that DIAC be approached to formulate a national uniform policy to house persons charged with people smuggling who claim to be under 18 in suitable community detention in the same capital city as the court proceedings. The AHRC recommend that Section 250 of the Migration Act be repealed, or alternatively be amended to impose severe time limits on detention prior to charge and to provide for judicial oversight of detention.. The AHRC recommend that before DIAC interview any person who may be reasonably suspected of committing a criminal offence, DIAC: Is required to give a person contact with a solicitor. Is required to advise the person of their right to silence. The AHRC recommend that DIAC be approached to develop a different pro forma interview for people suspected of people smuggling, and not use the same form as is used for asylum seekers. The AHRC recommend that DIAC and the AFP be approached to train staff dealing with Indonesian clients on proper interview techniques, specifically: Language variation in Indonesia, and the need to establish whether a person in fact understands the Bahasa Indonesia interpreter. Culturally appropriate interviewing techniques. The AHRC recommend the payment of compensation to children who have been detained in adult gaols, whether on a legal liability or ex gratia basis. The AHRC obtain direct evidence from children returned to Indonesia after spending long periods on remand in Australian prisons. Annexure There are serious problem with the reliability of wrist-xrays. The problems are explained well by Bowen DCJ in R v Daud [2011] WADC 175. Consideration of the evidence The evidence called by the prosecution A central feature of the prosecution's submissions is Greulich & Pyles', Radiographic Atlas of Skeletal Development of Hand and Wrist (herein after referred to as the Atlas) and its interpretation by [name]Dr Low and other prosecution witnesses. Greulich & Pyle, Radiographic Atlas of Skeletal Development of the Hand and Wrist 10 The second addition of the Atlas was published in i1959)and is exhibit 19. The stated aim of the Atlas was to create a method providing more precise information about the development status of a child than could be properly inferred from the child's height, weight and age alone and by the use of an x-ray film of the hand meet the need for a dependable indicator of the development status of children. In the study, children of a known chronological age had x-rays performed every year of their left hand. 13 It is accepted that the radius is the last post of skeletal maturity within the hand. As the skeleton matures, the radiographic appearance of the growth plates change in a well defined way and when the radial epiphysis fuses with the shaft, skeletal maturity of the hand and wrist is complete. No further growth is possible and the appearance of the x-ray will then remain the same throughout the balance of the subject's life. 14 The authors chose a single x-ray as the standard for each of the 31 skeletal ages they prescribed for males. They explained: Each of the standards in this Atlas was selected from 100 films of children of the same sex and age. The film of each of these series was arrayed in the order of their relative skeletal status from the least mature to the most mature. In most cases the film chosen as the standard is the one which, in our opinion, was most representative of the central tendency or anatomical mode, of the particular array. The anatomical mode was frequently but not always, at or near to the mid-point of the distribution of the 100 films. It was fartherest from the mid-point at those ages when as a result of a major change in the rate of development differences in the degree of skeletal development of the children resulted in a skewed distribution of the array. Every effort was made to ensure that each standard would depict as accurately as possible the mode or degree of skeletal development attained by the children of the same sex at that chronological age in our Research series. (32) The standards chosen are illustrated within the Atlas. The last male standard in the Atlas is described as 'Male Standard 31, skeletal age 19 years'. At that standard, the x-ray depicted is skeletally mature. There is no point, of course, of having any further standards because once skeletally maturity is achieved there will be no further changes shown on the x-ray. A radiologist using the Atlas would examine the x-ray provided to them by comparing it to the 31 standards in the Atlas. The skeletal age given by the radiologist to the x-ray will match the standard shown in the Atlas. 18 The inevitable consequence of this is that anyone with a mature skeleton will be given the standard ascribed by the Atlas to a mature skeleton, namely standard 31 and the skeletal age 19 irrespective of whether that person chronologically is aged 15, 19 or 99. Within the Atlas, are standard deviations tables of skeletal ages for different chronological ages being tables (iii)-(vi), taken from two further studies which looked at a particular standard and compare that to the known chronological age of the child, thereby creating the deviation from chronological to skeletal( bone) age. Each of the standard deviation charts has as its last chronological age 17 years. The authors accepted and noted the limitations of their own studies stating: ... In any intensive study of individual children, therefore, the hand-film should be supplemented by significant physical measurements and other pertinent data which aid in appraising the child's nutritional and development status ... It should be remembered, however, that no single available technique is entirely adequate for appraising the child's physical status and all of them together occasionally fail to disclose existing insipient abnormalities which subsequently manifest themselves. They, however, must not permit their enthusiasm for a procedure which they find rewarding to obscure the limitations inherent in it. The assessment of the hand-film should be regarded as a supplement to, and not as a substitute for,, other valid methods of appraising the physical status of children. [22] 22 They also state: A word of caution is, perhaps justified, however in evaluating the skeletal status of children of different racial groups. There is a tendency to attribute the relative retardation in skeletal development that has been observed among children of some parts of the world at least in part to racial differences in the rate at which the skeletal developments normally proceeds. It is quite possible that this is not the correct interpretation of such differences. (41 - 42) The assessment of hand-films has of course a large subjective component. It involves making numerous judgments as to whether individual bony centres of epiphyses visible in the film are or are not as advanced in their development as the corresponding centres in one or more successive standards with which they are being compared. (43) The system designed in this Atlas for example is intended to provide merely useful estimates of skeletal status and it will do so if it is properly used. Unfortunately as in many other similar procedures there is a tendency to attribute to and to expect from it a greater degree of precision than was intended by those who devised it or indeed than is permitted by the nature of the changes which it is designed to measure. (44) Statistical methods which have contributed so much to the proper interpretation of data also suffer occasionally from the tendency to expect more from them than they are designed to provide. (48) As in other respects of human growth and development this variety inherent in the skeletal development should make us cautious about selecting one technique for evaluating 'normality' range least we lose sight of the difference in meaning of retardation and acceleration. (49) . . . The Atlas The purpose of the Atlas was to estimate the skeletal age of growing " ^ children of a known chronological age, it makes no reference to determining an unknown chronological age from skeletal maturity. The link between chronological age and skeletal age is, if not weak, not well established and according to the International Olympic Committee Consensus Statement on age determination in high level young athletes there can be variations in chronological age from skeletal age of up to four years. It is uncommon to determine an unknown chronological age from the skeletal age obtained solely via a single x-ray of the wrist and its comparison to the Atlas standards and there is a significant body of scientific opinion that it is inappropriate to use the Atlas to determine chronological age The Atlas does not examine the chronological age that a person obtains skeletal maturity I accept there is no definitive scientific conclusion both as to whether ethnic differences affect skeletal maturity or whether males are maturing at an earlier age than when the Atlas was released. The age 19 male standard used in the atlas is the standard would be ascribed by those using the Atlas to any mature male skeleton irrespective of the chronological age of the subject. The standard deviations provided in the Atlas conclude at skeletal age 17. The medical evidence As to [name], [name] and [name] [the prosecution radiologists in that case] evidence I accept the x-ray of each accused showed skeletal maturity however I am not prepared to accept the findings in [name]'s reports relating to the statistical probabilities of the accused being of the chronological age he reports for two reasons. Firstly, because I accept the evidence of [name][medical statistician briefed by the defence in this case] and [name] [radiologist briefed by the defence in this case], that there is an absence of scientific data to validate the use of the standard deviation provided by the Atlas for an immature skeleton to assess the chronological age of a person possessing a mature skeleton. Secondly because [name], [name] and [name]'s [ie the prosecution radiologists] basic assumption that skeletal maturity is achieved on average at age 19 is not supported by the Atlas. I accept [name] and [name]'s evidence that there is other research which shows that the skeletal maturity is achieved at the age of 18 or before. I accept [name]and [name]'s evidence that whilst a male aged 19 will on average show skeletal maturity that does not equate with saying the average age of obtaining skeletal maturity is 19. I accept the prosecution's criticism that I could not rely on [name]'s calculations of probabilities as to the accuseds age based on the TW3 method because neither [accused] or [accused] had been assessed under TW3 and as I am unsure whether TW3 refer to a skeletally mature wrist as a wrist that has commenced the fusion process of the radial epiphysis or completed it. However that does not invalidate [name]'s evidence which I accept that he calculated the' mean' age of skeletal maturity for males based on information in TW3 as 17.6 years with a standard deviation of 16 months. The Medical Experts satisfies me on the balance of probabilities only that both [accused] and [accused] had skeletally mature wrist x-rays at the date they were taken and that most 19-year-old males are skeletally mature. [Sentence removed due to suppression order]  Transcript of proceedings in R (Commonwealth) v Joe, Kadir and Karim, Campbelltown DC, 12/7/11  Migration Act 1958 s. 250  "Assessment of age of refugees and those persons accused of providing refugees with illegal access to Australia: The unethical use of Ionizing Radiation (X Rays) and/or Genital examination" signed on behalf of the Royal Australian College of Physicians, the Royal Australian and New Zealand College of Radiologists, the Australian and New Zealand Society for Paediatric Radiology and the Australian Paediatric Endocrine Group (19 August 2011). This letter has been made publicly available through the APEG website at  HYPERLINK "http://www.apeg.org.au/Portals/0/documents/o_age%20assessment%20letter%20to%20immigration%20minister.pdf" http://www.apeg.org.au/Portals/0/documents/o_age%20assessment%20letter%20to%20immigration%20minister.pdf  ibid  See UNICEF, Age assessment practices: a literature review & annotated bibliography, Terry Smith and Laura Brownlees, 2011 at 15-17.  UNICEF Age assessment practices: a literature review & annotated bibliography Terry Smith and Laura Brownlees, 2011.  At pages 11 and 12  At paragraphs 9-22, 252-257 and 260-262  ibid  Applicant VFay v Minister for Immigration [2003] FMCA 289, Osman v Minister for Immigration and Multicultural Affairs [2007].  UNICEF Age assessment practices: a literature review & annotated bibliography Terry Smith and Laura Brownlees, 2011.  Crimes Regulations 1990 reg 6C.  ibid  R v Daud [2011] WADC 175, R v Junus [2010] WACC 2, R v Abdulla [2010] SASC 52.  Abdulla v R [2010] HCATrans 225.  Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) Part 9 Division 2 and Crimes Act 1914 (Cth) Part 1AA Division 2, Subdivision A.  Crimes Act 1914 (Cth) Part 1AA Division 2, Subdivision B.  Migration Act s 236B  For example, reg 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) defines 'vulnerable persons' to include anyone under the age of 18. See also s 6 of the 鱨վ (Criminal Proceedings) Act 1987 (NSW) ('CCP Act').  Section 28 CCP Act.  Section 9 鱨վ (Detention Centres) Act 1987 (NSW) ('CDC Act')  Section 28 CDC Act  Sections 28A and 28B CDC Act  Section 28D CDC Act  Section 189(1) Migration Act. For unlawful non-citizens who are in Australia but outside the migration zone, such as people who arrive on Christmas Island by boat, the power to detain is discretionary: section 189(3) Migration Act.  See, for example, Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133; (2010) 272 ALR 14; [2010] HCA 41.  Section 198(2) Migration Act  Section 4AA(1) Migration Act  Procedures Advice Manual 3 (PAM3): Act DSM Chapter 2 Client placement Minors in detention. All references to PAM3 are references to the version currently in effect unless otherwise indicated. The section of the PAM3 referenced in this footnote applies to minors who entered Australia unlawfully with their parents, those who entered Australia legally on their own and have become unlawful, those who entered Australia legally with their parents but the family has become unlawful, those who entered Australia legally/illegally with their parents and have subsequently been abandoned or are unable to be cared for by the parent/s, those who are in immigration detention without a parent to care for them, but who have a parent or relative over 21 years of age already living in the Australian community with whom they intend to reside, and those who have entered Australia as non-citizens and intend to become permanent residents of Australia and who do not have a parent or relative over 21 years of age in Australia to care for them (at 5). It does not apply to minors who are illegal foreign fishers or unaccompanied humanitarian minors (ie minors who have been granted a visa under Australia's humanitarian program see 6). It is unclear whether it applies to unaccompanied minors who enter Australia unlawfully and do not intend to become permanent residents of Australia, since they are neither explicitly included in nor excluded from the policy.  Ibid, at 2.  Ibid at 4.1. Visa cancellation on character grounds under section 501 of the Migration Act usually occurs because the person has criminal convictions.  Ibid at 15.1.  Section 5(1).  Since the Migration Act imposes a positive duty to detain a person in the migration zone who is known or suspected to be an unlawful non-citizen, if no visa has been granted, it appears that the person must continue to be kept in immigration detention within the meaning of the Migration Act even after a warrant has been issued by a court.  Attorney-General's Department Meeting Brief: Senior Officials' Committee teleconference with senior officials from New South Wales, Victoria, Western Australia, Queensland, South Australia, the Northern Territory and the Australian Capital Territory on people smuggling crew matters. Online, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(9A5D88DBA63D32A661E6369859739356)~Disclosure+Log-+Documents+relating+to+People+Smuggling+-+鱨վ+in+Gaols+-+Part+1.PDF/$file/Disclosure+Log-+Documents+relating+to+People+Smuggling+-+鱨վ+in+Gaols+-+Part+1.PDF, last accessed 10 January 2012.  PAM3: Act DSM Chapter 2 Client placement Minors in detention (version in effect from 9 November 2009 to 14 May 2011) at 11.2. Similar provisions requiring the person to be referred for a "physical assessment" existed in the policy before that.  PAM3: Act DSM Chapter 2 Client placement Minors in detention at 11.2.  Section 7 of the CCP Act provides that the Local Court may not hear and determine criminal proceedings that the 鱨վ's Court has jurisdiction to hear and determine. See also the WA decision of R v Daud [2011] WADC 175.  Note, however, section 7A and Part 4 of the CCP Act.  In relation to the Commonwealth's non-delegable duty of care with respect to immigration detainees see S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Anor (2005) 216 ALR 252.  See, for example, New South Wales v Bujdoso (2005) 222 ALR 663.  R v Daud [2011] WADC 175; Applicant VFAY v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 180 FLR 133.  In relation to the availability of damages for false imprisonment in circumstances where the person was not entitled to her liberty but was unlawfully detained in the wrong place, see TD v State of New South Wales [2010] NSWSC 368; TD bht Protective Commissioner of NSW v State of New South Wales [2011] NSWSC 763.  Marshall v Watson (1972) 124 CLR 640, cited by Kirby J in Ruddock v Taylor (2005) 222 CLR 612 at [140] (in dissent, but not as to this).  New South Wales v Bujdoso, supra n 23.  Heilpern, Fear or Favour: Sexual Assault of Young Prisoners (Lismore: Southern Cross University Press, 1998).     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