CHAPTER 1


CHAPTER 1

Introduction

Referral of inquiry

1.1        The Crimes Amendment (Fairness for Minors) Bill 2011 (Bill) was introduced into the Senate by Senator Sarah Hanson-Young (Greens, SA) on 23 November 2011.[1] On 25 November 2011, the Bill was referred to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 22 March 2012.[2] On 28 February 2012, the Senate agreed to extend the reporting date to 4 April 2012.[3]

Background

1.2        In 2001, the Australian Parliament passed amendments to the Crimes Act 1914 (Crimes Act) to enable an investigating official to carry out a prescribed procedure in relation to a person reasonably suspected of a Commonwealth offence (either with the person's consent or on application to a magistrate) to determine whether or not the person was under 18 years at the time of the alleged commission of the offence.[4] Under regulation 6C of the Crimes Regulations 1990, the current prescribed procedure for determining a person's age is a radiograph taken by an 'appropriately qualified person' of 'the hand or wrist of the person whose age is to be determined'.

1.3        The introduction of the Bill occurs in the context of a recent growth in the number of people smuggling prosecutions,[5] and follows recent instances where prosecutions against persons accused of people smuggling offences have failed due to determinations by courts that the relevant persons were under 18 years of age at the relevant time.[6] The use of minors as people smuggling boat crew has also been highlighted. A recent United Nations paper on the smuggling of migrants by sea noted:

In many regions, there have been situations of minors being used to captain the boats so as to avoid prosecution upon interception, though this is not always the result. Often the boat will be piloted by an adult and a child only placed at the helm when rescue services are spotted or where the vessel is approaching its destination.[7]

1.4        On 6 January 2011, in response to a media report on the accuracy of x-ray age determinations, the Australian Federal Police (AFP) issued a clarification regarding the process used to determine the age of alleged offenders:[8]

The current age determination process requires a wrist x-ray to be undertaken on all persons who claim to be a juvenile. The process involves utilising the "Radiographic Atlas of Skeletal Development of the Hand and Wrist" by Gruelich and Pyle. The AFP relies upon an independent medical expert to interpret the x-ray and determine the age of the person. The Gruelich and Pyle test provides an assessment of age between 11 and 19 years. The AFP relies upon the report that is then generated by the medical expert determining the age of the person.

Where a person tests at 19 years of age the AFP will typically proceed with the charging of this person as an adult in accordance with the [Commonwealth Director of Public Prosecutions] Prosecution Policy of the Commonwealth and a brief of evidence is submitted by the AFP to the CDPP.

This method of age determination has been tested and successful before Australian courts of law.[9]

1.5        On 8 July 2011, the then Attorney-General, the Hon Robert McClelland MP, and the then Minister for Home Affairs and Justice, the Hon Brendan O'Connor MP, announced 'stronger processes to help determine the age of individuals detained in Australia suspected of people smuggling'.[10] Under the new measures, the AFP would:

-          offer dental x-rays to alleged people smuggling crew claiming to be minors, in addition to the existing process, commencing as soon as possible;

-          take steps as early as possible to seek information from the individual's country of origin, including birth certificates, where age is contested; and

-          use additional interview techniques to help determine age.

1.6        On 21 November 2011, the Australian Human Rights Commission announced that it would conduct an inquiry into the treatment of suspected people smugglers who claim to be children. The inquiry is expected to run until mid-2012.[11]

1.7        On 6 December 2011, the then Minister for Homes Affairs and Justice, the Hon Brendan O'Connor MP, announced that he had discussed the age determination process for people smuggling crew with Indonesian ministers and officials as part of a visit to Jakarta:

The talks also included discussions about ways to improve the collection of information and documents to obtain proof of age of people smuggling crew.

'Australia has no desire to jail Indonesian children, and we are committed to ensuring that any minors among people smuggling crew are treated appropriately,' Mr O'Connor said.

'Our focus is on the organisers of people smuggling activity, not the crew.'

'I thank the Indonesian authorities for making a commitment to prioritise Australian requests for information that would assist into determining the age of crew who claim to be minors.'

Mr O'Connor also thanked the Indonesian National Police [INP] for their work in this area and the high level of support they provide to the Australian Federal Police.

The AFP is working with the INP to develop an agreed process for the improved collection of evidence to expedite the return of minors to Indonesia.

Where age is not able to be clearly established, the person being investigated or prosecuted will continue to be given the benefit of the doubt and will be returned to Indonesia without charge.

This enhanced cooperation complements measures announced by the Gillard Government in July to determine the age of people charged with people smuggling offences."[12]

1.8        In relation to the discussions with Indonesia, the then Minister commented:

What we've made very clear to the Indonesian government is that we will set in place an administrative arrangement where the matter is not referred to the AFP but there will be a determination by the Department of Immigration and Citizenship, and then the International Office of Migration will accompany those minors home as quickly as possible.[13]

1.9        At the committee's Additional Estimates 2011-12 hearing on 14 February 2012, the AFP confirmed these procedural changes occurred in December 2011. Following the changes, if the Department of Immigration and Citizenship (DIAC) makes a determination that a crew member on a people smuggling vessel is a juvenile, they are not referred to the AFP and the person is usually voluntarily deported.[14] If the crew member is assessed by DIAC to be an adult they will be referred to the AFP for investigation.[15]

1.10      Also at the Additional Estimates hearing on 14 February 2012, the Commonwealth Director of Public Prosecutions (CDPP) indicated that there were 208 Indonesian nationals facing charges for people smuggling offences at that time and that eight of those were cases where age determination is in dispute.[16] The joint submission to the current inquiry from the Attorney-General's Department (AGD), the AFP and the CDPP (referred to in this report as the Commonwealth joint submission) included further information in relation to people smuggling prosecutions and x-ray age assessments:

In the period 1 September 2008 to 27 January 2012, 208 people smuggling crew claimed to be minors. Of these, 123 had wrist x-rays undertaken. These wrist x-rays indicated that 86 persons were skeletally mature, of which:

1. six did not proceed to prosecution

2. eight are currently before court (not all of whom are claiming to be minors)

3. 44 had their prosecutions discontinued

4. 25 were convicted, and

5. three were found not guilty.

In the same period, 118 people smuggling crew have been returned to their country of origin because they were assessed to be a minor, were given the benefit of the doubt by law enforcement authorities, or were found by a court to be a minor. Of these, 37 people were assessed as minors on the basis of their wrist x-ray results.[17]

Purpose of the Bill

1.11      The Bill seeks to amend the Crimes Act to establish timeframes and evidentiary protocols for the age determination and prosecution of non-citizens who are suspected or accused of people smuggling offences under the Migration Act 1958 (Migration Act) and who may be under 18 years of age.[18]

1.12      Senator Hanson-Young outlined the purpose of the Bill in the Second Reading Speech:

[W]e seek to establish fair criminal procedures and basic humanity in the way Australia deals with non-citizen alleged people smugglers who are potentially only children. The Bill removes the taking and usage of discredited wrist (or other skeletal) x-rays in the age determination processes; establishes reasonable timeframes for the laying of charges and the age determination proceeding before a court; confirms that people who claim to be minors will be treated as such unless it is proven through a legal age determination process that they are adult; ensures that no person who is possibly a child will be incarcerated in an Australian adult prison or remand centre; and reiterates the onus that should be borne by Australian prosecuting agencies in assembling a thorough brief of evidence to displace the presumption that the person is a minor.[19]

Key provisions of the Bill

1.13      The key provisions of the Bill amend the Crimes Act.

Use of x-rays to determine age

1.14      Current Division 4A of Part IAA of the Crimes Act concerns procedures for determining a person's age. In particular, current subsection 3ZQA(2) of the Crimes Act provides that the 'regulations may specify a particular procedure, which may include the taking of an x-ray of a part of a person's body, to be a prescribed procedure for determining a person's age'. Item 1 of Schedule 1 of the Bill omits 'which may include the taking of an x-ray of a part of a person's body' from this subsection.

1.15      Item 2 of Schedule 1 inserts two additional subsections after subsection 3ZQA(2), namely new subsections 3ZQA(2A) and 3ZQA(2B).

1.16      Proposed new subsection 3ZQA(2A) provides that, despite current subsection 3ZQA(2), 'the regulations must not specify the taking of an x-ray of a part of a person's body as a prescribed procedure for determining a person's age'.

1.17      Proposed new subsection 3ZQA(2B) provides that if, immediately before the time this subsection commences, regulations are in force which specify the taking of an x-ray of a part of a person's body as a prescribed procedure for determining a person's age, those regulations 'cease to be in force on and after that commencement'.

Time limit for age determinations

1.18      Item 3 of Schedule 1 inserts, after Subdivision A of Division 4A of Part 1AA, proposed new Subdivision AA titled 'Time limits on determining age in certain circumstances'. Proposed new Subdivision AA includes proposed new section 3ZQAA titled 'Time limit on determining age in certain circumstances'.

1.19      Proposed new subsection 3ZQAA(1) provides that section 3ZQAA applies in relation to a person, if the person:

(a)        is a non-citizen (within the meaning of the Migration Act);

(b)        is suspected of committing a people smuggling offence;

(c)        claims to have been under 18 years of age at the time of the commission of the offence; and

(d)        has been taken into immigration detention (within the meaning of the Migration Act).

1.20      Proposed new subsection 3ZQAA(2) provides that, for the purposes of criminal proceedings, a person is taken to be under 18 years of age at the time of the alleged commission of the offence, unless a magistrate orders, on application by an investigating official, that the person was 18 years or over at the time of the alleged commission of the offence.

1.21      Proposed new subsection 3ZQAA(3) provides that an application by an investigating official under subsection 3ZQAA(2) can only be made within 30 days after the person is taken into immigration detention.

1.22      Proposed new subsection 3ZQAA(4) provides that, before making an order under subsection 3ZQAA(2), the magistrate 'must be satisfied on the balance of probabilities' on the evidence before the magistrate that the person was 18 years or over at the time of the alleged commission of the offence.

1.23      Proposed new subsection 3ZQAA(5) provides that this evidence may include birth certificates, affidavits from family members, school records and medical records.

1.24      Proposed new subsection 3ZQAA(6) provides that the section applies to the person even if the person is no longer in immigration detention.

Youth justice facilities

1.25      Existing section 15 of the Crimes Act deals with the remand of a defendant where 'it becomes necessary or advisable to defer the hearing of [a] case'. The section provides that the court may: (a) by warrant, remand the defendant into custody 'until the time appointed for continuing the hearing; or discharge the defendant'.

1.26      Item 5 of Schedule 1 of the Bill inserts proposed new subsection 15(2) at the end of existing section 15. Proposed new subsection 15(2) provides that a person must be remanded in a 'youth justice facility' where:

  • the person is charged with a people smuggling offence;
  • the person is a non-citizen (within the meaning of the Migration Act);
  • the person was either under the age of 18 years at the time of the alleged commission of the offence or claims to have been under the age of 18 years at the time of the alleged commission of the offence;
  • a magistrate has not ordered under proposed new subsection 3ZQAA(2) that the person is 18 years or over; and
  • the person is remanded under paragraph 15(1)(a).

Time limit on bringing people smuggling charges

1.27      Item 6 of Schedule 1 inserts proposed new section 15BA titled 'Time limit for bringing people smuggling charges in certain circumstances'. Proposed new subsection 15BA(1) provides that the new section applies in relation to a person if:

  • the person is a non-citizen (within the meaning of the Migration Act);
  • the person is suspected of committing a people smuggling offence;
  • the person is, or claims to be, under the age of 18 years; and
  • the person has been taken into immigration detention (within the meaning of the Migration Act).

1.28      Proposed new subsection 15BA(2) provides that a charge for a people smuggling offence can only be brought against the person within 14 days after the person is taken into immigration detention.

Conduct of the inquiry

1.29      The committee advertised the inquiry in The Australian newspaper on 7 December 2011 and details of the inquiry, the Bill and other associated documents were placed on the committee's website. The committee also wrote to a number of organisations and individuals, inviting submissions by 31 January 2012.

1.30      The committee received 21 submissions for the inquiry. Submissions are listed at Appendix 1 and are available on the committee's website at www.aph.gov.au/senate_legalcon.

1.31      The committee held a public hearing in Canberra on 16 March 2012. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Acknowledgement

1.32      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.33      References to the Committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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