ࡱ> g NbjbjVV @r<r<E%8@dd(0"RRR---acccccc$--RR2!!!FRRa!a!!~8RЖܓrXMΑHsLjoj^j0-/!{<---W---j--------- : 10 February 2012 Ms Catherine Branson QC President 鱨վ Via email:  HYPERLINK "mailto:ageassessment@humanrights.gov.au" ageassessment@humanrights.gov.au HYPERLINK "mailto:agedetermination@humanrights.gov.au"  Dear Ms Branson, RE: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children The Northern Territory Legal Aid Commission (NTLAC) welcomes the opportunity to comment on issue of age assessment in people smuggling cases. NTLAC has also endorsed the submission made by New South Wales Legal Aid to the Crimes Amendment (Fairness for Minors) Bill 2011. 鱨վ NTLAC NTLAC is an independent statutory Commission which provides advice and assistance to persons in a range of matters, including: Family law Domestic violence Child in need of care Criminal law; and Civil law. NTLAC aims to ensure that the protection or assertion of the legal rights and interests of people in the Northern Territory are not prejudiced by reason of the inability to: obtain access to independent legal advice; afford the financial cost of appropriate legal representation; obtain access to the Federal or Territory legal systems; or obtain adequate information about access to the law and legal system. NTLAC also provides early intervention and prevention services pursuant to the National Partnership Agreement on Legal Assistance Services between the Australian and NT Governments. These services include legal information, education, referral, advice, advocacy and minor assistance. NTLAC is a Territory-wide legal service provider with offices across the NT and fits within a matrix of legal and related service providers across the NT. Background NTLAC services extend to assisting people in detention in relation to criminal offences including those suspected of illegal foreign fishing and people smuggling. NTLAC provides advice to individuals in immigration detention pending investigation of alleged charges including people smuggling. Advice has been provided to detainees in the following circumstances: they contact NTLAC prior to participating in an Electronic Record of Interview (EROI); they contact NTLAC prior to AFP conducting a wrist x-ray to determine age; and they contact NTLAC and request a visit to NIDC. In general terms, the query is seeking information about the status of their investigation and why they are being held without charge. Once an individual is charged with criminal offences NTLAC is notified by the Commonwealth DPP and we will open a file and provide representation for the court matter. NTLAC records from September 2008 to January 2012 indicate that in that time period: 34 individuals contacted us for advice who stated they were under 18; five individuals contacted us for advice who were unable to identify their age at all; and seven files were opened for people who at some point claimed to be under 18 years of age. Advice Requests for advice may be dealt with immediately by telephone or may result in a visit from a NTLAC lawyer with expertise in criminal law. Face to face advice is provided. Minor assistance may be provided as part of the advice, for example in the form of a letter outlining the clients concerns. If further follow up is required, this would require an application for legal aid which would be processes according to the NTLAC guidelines. The following data in this section relates to advice only where there was no subsequent application for legal aid. Either the individual was moved interstate and charged there; they were deported without charge; or they are still in immigration detention awaiting charge. Of those provided advice only: the claimed age ranged from 12 to 17 years of age 12 people received advice on participating in an EROI 21 people received advice about consenting to a wrist x-ray (there were some who received advice for both,) Legal advice was provided on request in relation to the rights and obligations of an individual to submit to a wrist x-ray. Only 3 clients contacted us requesting information on what was happening with their cases. One stated he had been in detention 3 months and hadnt had an x-ray done yet. Casework All applications for legal aid, are processed in accordance with the NTLAC guidelines. This results in opening files and allocating a lawyer to deal with an individual once criminal charges have been laid. NTLAC is aware of 7 files where individuals claimed to be under 18. In five cases the clients pleaded guilty and accepted that they were at least 18 at the time of offending. In only one of these cases was there an age determination issue raised in court. In that case preliminary proceedings involved evidence called solely in relation to the wrist x-ray and the Magistrate found that the individual was at least 18 years old. In two cases the crown filed nolle prosequis, presumably on the point of age only, as they proceeded against other alleged crew on the same vessel. These two individuals were in detention for 8 and 8 months before charges were laid. The nolle prosequisi were filed 11 months and 16 months following apprehension. Place of detention Of the seven individuals claiming to be under 18 for whom NTLAC opened files, only 1 was held in juvenile facilities at the Northern Immigration Detention Centre (NIDC). Five were held in an adult prison and one was held in the adult section of NIDC. While in our experience clients were initially held in juvenile facilities at NIDC, following a wrist x-ray they would be moved to the adult section. If they came to court and were remanded in custody they were always kept at the adult prison. Terms of reference We now turn to specifically address the terms of reference of the Inquiry. 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); To our knowledge, DIAC conducts interviews with individuals who claim to be under 18 to attempt to ascertain their age by questioning as to family, schooling, work history and the like. If anything further is being done it has not been disclosed to us in any of our cases. We have a number of issues with these interviews: They are very subjective, both in requiring the interviewee to be able to provide an accurate history and in the opinion forming by the interviewer. There is significant scope for incorrect results where individuals with limited education fail to provide an accurate history. There is also the risk of misunderstandings due to language and cultural barriers, as despite the provision of interpreters, many people speak dialect and have limited education. Generally these age interviews have not been disclosed as part of the Crown brief. In one case the interview was disclosed to NTLAC very late, after the individual had been in custody for a long period of time and the matter had been listed for trial. The interview indicated that the defendant may well be younger than 18. Ultimately in this case the prosecution filed a nolle prosequi, however this did not occur until 16 months after apprehension and a few weeks before the trial was listed to commence. No explanation was given as to the change in prosecution view, nor are we aware of any new evidence being received or provided to the prosecution to explain the decision. Early disclosure of this material may have assisted in submissions to have the charge withdrawn at an earlier stage. NTLAC is concerned that there is no obligation to caution a person or provide access to legal advice prior to participating in these interviews. This is significant as the interview may form the basis of the type of detention in which the person is held, whether or not charges are laid and ultimately there is the potential for them to be used in court in age determination proceedings. The individuals being interviewed are invariably from a different cultural background, of limited education and little if any knowledge of the Australia legal system. Their comprehension of the significance of the questions they are being asked is likely to be very limited. Many of our clients speak a dialect rather than the mainstream Bahasa Indonesia. Numerous comments have been made by both Indonesian interpreters and clients that there are communication difficulties. The matter is further complicated by the fact that some interviews by immigration are mandatory and an individual commits an offence if they do not answer the questions. Some of the concerns and limitations of this method of age determination cannot be overcome. This is not a reason to discontinue use as early identification that a person is under 18 is likely to result in the quickest return to Indonesia. However, where a person provides information or asserts that they are under 18 further investigations should continue even where an age interview or wrist x-ray indicates the individual may be an adult. 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 The only material we are aware of having been disclosed by the prosecution in relation to this are the wrist x-rays and age interviews by DIAC as discussed above. As acknowledged in the AHRC discussion paper, and submissions of Legal Aid Commissions in other jurisdictions in Australia, the use of wrist x-rays is extremely problematic. Even at the highest point on the wrist x-ray charts, where doctors say the person is at least 19 years of age, that is based on statistical norms are medically untested for clients from this demographic. The figure of 19 years is an approximate in view of the standard deviation being plus or minus 18 months so even if the study can properly be used to assess ages the result includes the possibility that the person is under 18. The concern is that despite the flaws the wrist x-ray results are used as definitive and no further investigation appears to be done as to age. The use of the wrist x-rays as definitive places the onus back on the individual and their representative, which is likely to be legal aid, to establish proof of age. This is problematic for legal aid in terms of resources. There are various barriers to clients obtaining proof of age documents, see comments below. 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; There are numerous barriers to clients obtaining proof of age documents. Many clients come from remote villages and have limited contact with their family in Indonesia. In some cases clients have been unable to contact family for the entire duration that they are in Australia awaiting charges or sentence. Many clients and their families do not have the finances to obtain and provide proof of age documents. Many clients may not have proof of age or have had their birth registered in Indonesia. NTLAC have had numerous clients who do not know their birth date with any certainty. Lack of literacy, language skills, education, telephone, email or fax contacts all create barriers. 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; the detention, including the determinations of the places of detention and the conditions of detention, of the individuals of concern; Where a person claims to be a child they are generally held in the youth section of NIDC until further determination of age occurs. It seems to be quite common that they are moved to the adult section following a wrist x-ray which suggests they are an adult. This means they are held in an adult section of detention prior to any court determination of age and irrespective of their claims that they are under 18. This is not always the case, NTLAC had one client who continued to be held in the youth section post adult charges being laid. Of the 7 cases NTLAC had where charges were laid and the client had indicated they were under 18, one client was held in youth section of NIDC, four were held in an adult prison and one was held in adult immigration detention at NIDC. In all of NTLAC cases where a person was charged as an adult and bail refused, they were held at the adult prison at Berrimah. This was the case even where clients were claiming to be under 18 and no final determination had been made as to age. NTLAC was not aware of the CDPP announcement that they would not oppose bail where age is in dispute. In the NT, despite a current stance of the CDPP not to oppose bail, different magistrates have taken different views. Some magistrates have dispensed with bail, others continue to remand detainees in custody, which means they will go to Berrimah Correctional Centre. This applies to all cases not just those where clients claim to be under 18. 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 the NT Life Without Barriers (LWB) has the contract to sit in on interviews as a responsible adult. Although LWB may have the capacity to ensure that no improper treatment occurs in the interview, there is insufficient contact between NTLAC and LWB enable NTLAC to comment meaningfully on how well the role is being fulfilled. NTLAC are concerned that the efficacy of any person being placed in this role is going to be limited by the fact that they do not have a pre existing relationship with the client and generally, in our experience, do not speak Indonesian. It is unclear what the role of LWB is in relation to advocacy on behalf of a minor. We have not had contact from LWB raising the concern that individuals have been held in detention for a period of time and seeking legal assistance to speed up the process. the provision to the individuals of concern of legal advice, assistance and representation, including with respect to age assessment As far as we are aware, NTLAC has never been called to provide advice or assistance to individuals in respect of age assessment interviews. This suggests that the AFP are not doing assessments but are relying on the assessments conducted by DIAC. NTLAC only becomes involved if Criminal charges are laid The individual seeks advice prior to an EROI or wrist x-ray The individual seeks advice while they are being held at the NIDC While NTLAC can provide assistance about age determinations once a person is charged there are serious issues with capacity and resources and it is concerning that legal representatives may not be receiving full disclosure on the basis of the AFP forming the view that an individual is 18 or over. See comment above about resources and lack of disclosure. NTLAC can provide advice in relation to EROI and wrist x-ray but we do not generally follow up to see whether the client is promptly charged or sent home. See comments below about movement of detainees. Current arrangements require the individual to know their rights to contact NTLAC. Since September 2008 we have only had a small number of minors contact legal aid from the NIDC youth section. This suggests either they are content with their treatment or they do now know of their right to contact legal aid. any other matters incidental to the above terms of reference. NTLAC is particularly concerned about lengthy delays. At present we are seeing numerous clients, not restricted to those claiming to be under 18, who are held in immigration detention for 8 to 12 months before they are charged. The delays clearly effect the speed at which assistance and advice can be provided to individuals attempting to establish proof of age. It also results in delays before courts can make determinations or appropriate submissions to the crown can be made. If a youth is found guilty of people smuggling the mandatory minimum term of imprisonment does not apply. The delays mean a real risk that a young person will spend longer in detention or on remand than they would be ordered to serve if they were convicted of the offending and sentenced. NTLAC is also concerned about the lack of disclosure as to movements of clients. As we are not advised when an individual is sent home to Indonesia or to another jurisdiction for charge, it is very hard to maintain any kind of record of outcomes or provide follow up assistance. NTLAC is concerned that youths held in detention prior to charge are without legal representation for lengthy periods of time. The current system as it works in the Northern Territory places too great an emphasis on the individual in custody knowing of their rights and accessing assistance by contacting Legal Aid, quite possibly an unrealistic expectation given the backgrounds of many individuals. Conclusion We are concerned that people, and in particular cases minors, are being detained in isolated facilities without adequate, accountable and transparent safeguards in place. We submit that agreed minimum standards should be put in place in the form of an agreed protocol in relation to a range of matters including: Information provision to legal service in relation to: numbers of people in detention Ages of people in detention People NTLAC have assisted leaving detention and their destination Automatic provision of access to legal advice and assistance, without the need for a request by the legal service. Time periods for relevant agencies to follow at key stages of the process. 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