CHAPTER 2
Key issues
2.1
This chapter discusses the following key issues raised during the
inquiry:
-
concerns relating to age and people smuggling prosecutions;
-
the merits of x-ray procedures for age assessment, including
wrist and dental x-rays;
-
ethical issues regarding medical procedures for non-therapeutic
purposes;
-
the appropriateness of a multidisciplinary approach to age
assessment;
-
the appropriate burden and standard of proof for age
determinations;
-
Australia's international law and human rights obligations to
children; and
-
commentary on specific proposed amendments in the Bill.
Age and people smuggling prosecutions
Prosecution policies
2.2
The age of suspected offenders and the affect of this factor on
prosecutions for people smuggling offences was an area of focus during the committee's
inquiry. The Prosecution Policy of the Commonwealth outlines a number of
factors to which regard should be had '[i]n determining whether or not the
public interest warrants the prosecution of a juvenile'.[1]
In particular, these factors include the seriousness of the alleged offence,
and the age and apparent maturity and mental capacity of the juvenile.[2]
AGD has previously outlined that, in accordance with this policy, the CDPP will
not, in most circumstances, prosecute persons who are found to be juveniles at
the time of the alleged people smuggling offences.[3]
The Commonwealth joint submission confirmed that minors would only be
prosecuted for people smuggling offences in exceptional circumstances:
In the absence of exceptional circumstances, and provided the
person has not sought to engage Australia's protection obligations, if a person
is assessed by an agency or determined by a court to be a minor, the person is
returned by DIAC to their country of origin without charge.[4]
2.3
In relation to x-ray age assessment procedures, the Commonwealth joint
submission outlined:
An investigating official may only arrange for the carrying
out of a prescribed procedure [such as a wrist x-ray] where the person is
suspected of a serious Commonwealth offence, and it is necessary to establish
the age of the person for criminal justice purposes, such as determining the
applicable investigatory safeguards, the appropriate court and detention facilities,
and whether any mandatory minimum penalties apply. During the investigation and
prosecution stages, if a person's age is in dispute and there is insufficient
evidence to establish that the person is an adult, the person is given the
benefit of the doubt about their age and treated as a minor.[5]
2.4
At the public hearing, an officer from AGD confirmed that age assessment
procedures have been 'continually under review' and a further change to
procedures was made in December 2011. Under the change, the initial DIAC
assessment that a person on a people smuggling vessel is a minor will be
accepted by authorities and the person will usually be repatriated without
referral to the AFP for investigation. Only if DIAC considers a person to be an
adult will a person be referred to the AFP for investigation.[6]
An officer from the AFP noted that this changed procedure means, in practice:
If a person is referred to us, the only time we would now
conduct a wrist
x-ray would be if, when the person was referred to us, we believed them to be
an adult and, subsequently, they claimed to be a juvenile. That may be post
charge; it may be pre charge. It depends when they raise that claim with us.[7]
Mandatory sentencing
2.5
The relationship between claims by persons suspected of people smuggling
to be children, and the mandatory minimum penalties for some people smuggling
offences, was also raised by submitters as significant issue.[8]
Currently under the Migration Act, a number of aggravated people smuggling
offences attract mandatory minimum penalties.[9]
However, these mandatory minimum penalties do not apply if it is established 'on
the balance of probabilities' that the person was aged under 18 years when the
offence was committed.[10]
Further, a court may discharge an offender without proceeding to conviction in
respect of a charge for an aggravated people smuggling offence 'only if it is
established on the balance of probabilities that the person charged was aged
under 18 years when the offence was alleged to have been committed'.[11]
2.6
In its submission, the Migrant and Refugee Rights Project at the
University of NSW highlighted the low threshold for the aggravated people
smuggling offence in section 233C of the Migration Act:
The only "aggravating" factor that differentiates
this offence from the standard smuggling offence...is the element that five or
more noncitizens were brought to Australia. Because unauthorised boats
invariably carry five or more people, all defendants are charged with this "aggravated"
offence and liable for the mandatory five year sentence – regardless of their
personal circumstances, level of involvement or moral culpability.[12]
2.7
The Migrant and Refugee Rights Project emphasised the serious
consequences of the mandatory minimum penalties for children where they may
have been incorrectly assessed by authorities to have been adults at the time
of aggravated people smuggling offences.[13]
However, as was noted by the Australian Human Rights Commission, mandatory
minimum penalties also 'may be an incentive for an individual under
investigation...who is aware of this policy to make a false claim to be a
child'.[14]
Skeletal age assessment (wrist x-ray)
2.8
As outlined in Chapter 1, the use of x-rays to examine the hand of a person
to assess age has been a prescribed procedure for age determination in
Australia since 2001. An x-ray is a non-invasive medical procedure which
exposes a part of the body to a dose of radiation in order to produce a picture
of that part of the body. The examination and analysis in relation to age assessment
involves an x-ray being taken of the hand, usually the left hand and wrist,
after which a comparison is made against a standard atlas of skeletal age to
assess skeletal maturity.
2.9
The Greulich Pyle method (GP method) is the most common method for
determination of skeletal maturity.[15]
This method compares the x-ray to the radiographic 'atlas', which is a body of
x-ray images of wrists of children of different ages. The standards were
developed by William Gruelich and Sarah Pyle throughout the 1930s and 1940s in
the United States, using x-rays of the hands and wrists of American children of
northern European descent.[16]
2.10
The committee previously considered the use of wrist x-rays for age
determination in its inquiry into the Crimes Amendment (Age Determination) Bill
2001 (2001 Bill). The committee acknowledged that the GP method 'is now seen as
somewhat outdated' and that it is a reversal of 'the usual process in which the
chronological age is known and the procedure is used to assess bone age and any
delays or advance that may be caused by health problems'.[17]
The committee also determined that the accuracy of the technique could not be
assured:
Although the wrist x-ray is intended to demonstrate the
extent of fusion of two bones, there is no real correlation between bone age
and chronological age. Variations can be as much as more than a year higher
than chronological age, and up to 18 months younger than chronological age.[18]
2.11
Nonetheless, the committee concluded that the provisions of the 2001
Bill 'may assist in clarifying the age of some persons suspected of, or charged
with, Commonwealth offences' and recommended that the 2001 Bill be passed with
some amendments.[19]
Concerns about the use of wrist
x-rays
2.12
A number of submitters and witnesses to the current inquiry criticised
or raised concerns with reliability of the use of wrist x-rays and the GP
method to determine the age of alleged people smugglers.[20]
For example, the Royal Australian and New Zealand College of Radiologists (RANZCR)
supported the Bill's amendments to remove 'any possibility of taking an x-ray
of a person's body part as a prescribed procedure for age determination'. It
argued that there is 'overwhelming evidence that bone age estimation is too inaccurate
to be used for determining chronological age for legal reasons', noting that
recently 'radial differences have been shown in Middle Eastern, Asian and Black
American populations with bone age disparities between 6 to 12 months depending
on the age when the children were assessed'.[21]
2.13
The paper provided to the committee by Professor Sir Al Aynsley-Green Kt
highlighted the many practical complications with age assessment and stressed
that there is no scientific method to accurately determine the precise
chronological age of a person.[22]
In the paper, he observed:
There has been overwhelming professional opposition to the
use of radiology in the UK on the basis of being inaccurate, not designed for purpose,
unethical and potentially unlawful; this has forced government to abandon its
proposal that they should be used.[23]
2.14
Professor Tim Cole provided the committee with a lengthy submission
dealing with the statistical issues of using the GP method to determine chronological
age. He concluded that 'there are no useful markers of physical maturity that
can be used for forensic age assessment'.[24]
2.15
The Australian Human Rights Commission summarised a number of the
concerns of 'medical and other experts' regarding the use of wrist x-rays for
age assessment purposes.[25]
These include:
-
the GP atlas was designed for assessment of skeletal age if the chronological
age is known, rather than the reverse;
-
it is not possible, reliably, to estimate the probability that an
individual is of a particular chronological age from an assessment of their
skeletal age using the GP atlas as the results could be affected by:
i.
a trend towards earlier maturity in children;
ii.
differences in skeletal development in different ethnic groups;
iii.
differences in skeletal development due to socio-economic background and
nutrition;
-
it is not possible to use the GP atlas to provide a statistical
probability that an individual is under 18 years of age; and
-
wrist x-rays cannot be used to assess age with an adequate degree
of precision.[26]
2.16
The Australian Human Rights Commission acknowledged that wrist x-rays
have been used, in some instances, to determine that a person suspected of
people smuggling offences was a child and to facilitate the quick return of
that child to Indonesia. Nonetheless, it would be 'seriously troubled' if
x-rays were being relied on as 'sufficient evidence of themselves to establish
that any individual is an adult'.[27]
No prohibition of wrist x-rays
2.17
Despite concerns regarding the accuracy of wrist x-ray age assessments,
the Migrant and Refugee Rights Project, Victoria Legal Aid and Legal Aid NSW
considered that the Bill should not prohibit the use of x-rays to assess age.[28]
The Migrant and Refugee Rights Project argued:
In our opinion, it is not necessary (and indeed it is
unusual) to prohibit reliance on a particular form of evidence. However given
the unreliability of the x-ray technique, we recommend that the Bill instead
prohibit age determination on the sole basis of x-rays. We support the
examples of additional forms of evidence under [proposed new subsection] 3ZQAA(5)
('birth certificates, affidavits from family members of the person, school records
and medical records').[29]
2.18
Legal Aid NSW supported abolition of regulation 6C of the Crimes Regulations 1990
but not a ban on the use of wrist x-rays in age determination:
[T]he existence of the Regulation appears to have had the
effect of giving more credence to the use of wrist x-rays as a means of
determining age, the corollary of which has been a reliance by both the
prosecution and some courts on the use wrist x-rays as the most valid means of determining
age... On the other hand we are aware that a number of Indonesian children have
been sent home very soon after an x-ray was conducted. For this reason, we
would not support an outright ban on the use of wrist x-rays as a means of
determining age as in some cases it is to the child's advantage, as it can
ensure an early release from detention.[30]
Commonwealth joint submission
2.19
The Commonwealth joint submission dismissed a number of the concerns
raised in relation to the GP method of age assessment. It pointed out that
there are 'a number of studies and papers that validate the Greulich and Pyle
Atlas across racial and ethnic groups' and that '[b]ased on expert advice the
Commonwealth has sought, a wrist x-ray procedure can assist in determining
whether a person is 19 years or older as male wrist skeletal maturation occurs
on average at that age'.[31]
2.20
At the committee's public hearing, an officer from AGD acknowledged that
age assessment is an inexact science which involves a margin of error and that
x-ray analysis of age might be affected by socioeconomic factors. However, the
officer suggested that 'wrist x-rays and other measures of age, while not
individually conclusive, in combination play a valuable role in the age
determination process'.[32]
In summary:
[T]he government considers that the use of x-rays as part of
the matrix of methods used to assess age is justified. It results in law
enforcement agencies and the courts being able to make informed decisions about
the age of a person claiming to be minor when there is doubt about that claim...[33]
2.21
The Commonwealth joint submission also noted that, during the
investigation and prosecution stages, 'if a person's age is in dispute and
there is insufficient evidence to establish that the person is an adult, the
person is given the benefit of the doubt about their age and treated as a minor'.[34]
The Commonwealth joint submission emphasised that '[w]hile a wrist x-ray that
indicates the person is a minor results in the discontinuance of criminal
proceedings (other than in exceptional circumstances), a wrist x-ray that
indicates the person is an adult is not determinative'.[35]
2.22
An officer from the CDPP explained, that when x-rays are used in the prosecutions
of people smuggling offences, it is not suggested that they 'prove' the
defendant is over 18 years of age:
We have attempted to assist the courts by giving them some
indication of what the probabilities are, and at the end of the day...wrist
x-rays are not a perfect system; they are just one indicator....It is then a
matter for the court to assess that evidence, together with any other evidence
it has, and decide whether it is satisfied that the person is over the age of
18 or not.[36]
2.23
The Commonwealth joint submission rejected the proposed amendments in
the Bill regarding x-rays utilised for age determination. In particular,
'removing x-ray procedures would eliminate both the scientific basis for
determining age and the ability to conduct quick age assessments, potentially
to the detriment of the defendant'.[37]
Further:
Given the ramifications of age determination outcomes for
individuals, and the large number of cases to date which have not proceeded on
the basis of a wrist x-ray indicating that the suspect is a minor, the Commonwealth
considers that concerns over the reliability of x-ray technology are outweighed
by the need for all available evidence to be presented to the court.[38]
2.24
The Commonwealth joint submission also indicated that, if skeletal
X-rays are removed as an age determination procedure, the AFP and the CDPP would
have to rely on interviews and information collected from the person's country
of origin. However, 'gathering evidence using these methods can be a lengthy
process, and unachievable in the proposed timeframes for age determination'.[39]
2.25
In relation to the commencement of the Bill's proposed amendments, the
Commonwealth joint submission also informed the committee that 'removing the
ability to use x-ray evidence already obtained could cause delays in current
cases where x-ray analysis is likely to be key evidence in determining the age
of the person, whether as a minor or an adult'.[40]
Dental age assessment (wisdom tooth)
2.26
The merits of dental age assessment were also considered in submissions to
the inquiry. This procedure usually involves taking an orthopantomogram, an
x-ray of the person's jaw and teeth. Conflicting evidence was received in
relation to the forensic value of dental age assessment. In the view of the
Australian Society of Forensic Odontology, analysis of third molar (or wisdom
tooth) development from an orthopantomographic image assessment is sufficiently
correlated with chronological age to be of forensic value:
The assessment of the development of the third molar provides
an ideal means to discriminate between an adult and a child. Third molars
develop from midteens to early 20s and complete closure of the apices of the
third molar teeth is an indication that the living individual is over the age
of 18 years and thus, by definition, an adult.[41]
2.27
However, Professor Tim Cole argued that 'dental age assessment raises
the same issues as bone age assessment, notably a dose of radiation,
uncertainty in the age of maturation, and a bias against individuals whose
maturation is advanced'.[42]
Similarly, the Royal Australasian College of Physicians contended that there is
'insufficient evidence to conclude that dental x-rays are accurate'.[43]
Professor Michael Ditchfield, Chair of the Paediatric Imaging
Reference Group from the Royal Australian and New Zealand College of
Radiologists (RANZCR) noted that dental disease and poor dental hygiene will
also affect the assessment of teeth with respect to skeletal age.[44]
2.28
The Commonwealth joint submission suggested that there could be
increased use of dental x-rays for age assessment in the future:
In addition to introducing a suite of improved age assessment
measures in mid-2011, including offering voluntary dental x-rays and interviews,
the Commonwealth is also considering adding dental x-rays as a prescribed procedure
in the Crimes Regulations. This would allow investigating officials to seek an order
from a court to conduct a dental x-ray and subject them to the same procedural safeguards
as wrist x-rays.[45]
2.29
An officer from the AFP informed the committee at the public hearing that,
between 8 July 2011 and 15 March 2012, 24 persons accused of people smuggling
had been offered voluntary dental x-rays for the purposes of age assessment,
but none had accepted.[46]
NSW Legal Aid also commented that, while the CDPP has previously offered dental
x-rays as an alternative to wrist x-rays, '[t]his has generally been rejected
by clients on the advice of defence lawyers as the information we have obtained
has been that this methodology has similar problems to wrist x-rays, in terms
of unreliability and health risks'.[47]
Ethical issues
2.30
Ethical issues were also raised in relation to health professionals
performing medical procedures for the purpose of determining age.[48]
For example, RANZCR considered that it is 'unethical to expose a young person
to radiation for purely administrative reasons'.[49]
Professor Michael Ditchfield from RANZCR noted:
[T]he radiological procedures performed in Australia and
throughout the world are largely governed by the ALARA principle. ALARA stands
for 'as low as reasonably achievable' and refers to the radiation dose...The
basis of ALARA is that radiation, no matter what the dose, is harmful; and if
there is no clinical benefit to an examination it should not be performed.[50]
2.31
The Australian Society of Forensic Odontology also acknowledged the 'medico-ethical
and legal considerations involved in conducting radiological procedures' on
living people with no defined medical benefit.[51]
It considered that fully informed consent by the patient to the procedure is
vital:
Comprehensive age assessment of living individuals
necessarily involves the use of ionising radiation – x-rays – with unavoidable
radiation exposure. While this exposure is not at a level sufficient to cause
immediate harm, it does raise the total lifetime dose of radiation experienced
by the individual.[52]
2.32
The Commonwealth joint submission outlined that it had received expert
advice that radiation exposure from wrist and dental x-rays is minimal. The
Commonwealth's view is that 'the health risks associated with wrist x-rays are
outweighed by the serious consequences to the individual, and the criminal
justice system more broadly, of an age determination made on the basis of insufficient
evidence'.[53]
2.33
The paper provided by Professor Sir Al Aynsley-Green Kt noted that new
methods, including magnetic resonance imaging and ultrasound studies of bones,
could overcome 'ethical objections to inflicting x-rays for administrative
purposes' but that these techniques are likely to face similar problems
regarding accurate age assessment.[54]
Multidisciplinary age assessment
2.34
Some support was expressed in submissions, and by witnesses, for taking
a multidisciplinary or holistic approach to age assessment in Australia,
including obtaining identification material from the person's place of origin.[55]
For example, the Royal Australasian College of Physicians considered that there
is room to investigate alternative methods of age assessment and suggested 'comprehensive
assessments which may include psychological, cognitive, developmental and
cultural factors'.[56]
Further, 'there is still a need for some form of age assessment in the criminal
justice system'.[57]
2.35
Similarly, RANZCR recommended the development of a 'holistic' age
assessment process, incorporating 'narrative accounts, physical assessment of
puberty and growth, and cognitive, behavioural and emotional assessments'.[58]
However, Professor Michael Ditchfield from RANZCR considered that wrist x-rays are
too inaccurate to be part of a holistic age assessment process, noting that age
assessments will be wrong 'at least one in five times'.[59]
2.36
Dr Jill Benson AM considered that, '[g]iven that the 'science' of age
assessment is inexact, it is important that the narrative account, the parent's
story of the time and circumstance of the child's birth and developmental
milestones, is clearly documented as this is the most likely means of properly
assessing the age'.[60]
Similarly, Mr Saul Holt of Victoria Legal Aid described an 'emerging consensus'
on the importance of holistic age assessment and stressed that this should be
combined with 'genuine inquiries in the local community of family members,
friends, teachers and village chiefs'.[61]
Ms Bassina Farbenblum from the Migrant and Refugee Rights Project considered
that the onus of collecting this type of information should be on the Crown,
rather than the defendant or legal aid organisations.[62]
2.37
The Commonwealth joint submission emphasised that wrist x-rays are not
considered determinative in isolation:
[I]nvestigating officials use a suite of methods to assess a
suspect's age, including offering voluntary dental x-rays, voluntary
interviews, and obtaining documents from the person's country of origin (such
as birth certificates, school records and statements from relatives).[63]
2.38
However, in considering the age determination procedures used overseas,
the Commonwealth joint submission pointed out that there is no authoritative
definition of a 'holistic approach to age determination'. Wrist x-rays are
still used in a large number of European countries as part of age assessment
procedures and, further, 'the holistic approach to age determination in the UK
does not appear to have resulted in fewer disputes about age'.[64]
2.39
At the public hearing, an officer from the AFP noted the limitations of
documentation detailing age in Indonesia, in particular highlighting estimates
that only 55 per cent of Indonesian births were recorded between 2000 and 2008.[65]
In relation to information gathered through interviews, the AFP officer noted that
'typically the majority of Indonesia crew decline to participate in a formal
record of interview with police'.[66]
He also outlined that the AFP had sought advice from a social anthropologist who
had advised that it is not feasible to develop a generic set of age assessment interview
questions, due to the diversity of the Indonesian language, culture and geography.
The officer stated that the AFP is 'now exploring other enhanced interview
techniques to use in the event individuals accept [its] offer of interview'.[67]
Burden and standard of proof
2.40
Several submissions focused on the appropriate evidentiary standards for
age determinations by courts. The Commonwealth joint submission noted that,
currently if a person continues to raise age as an issue after being charged, a
court makes 'a determination on the balance of probabilities about whether the
person is a minor'.[68]
Burden of proof
2.41
While courts generally attribute the onus of proof to the prosecution,
the Commonwealth joint submission noted that this issue has been dealt with inconsistently.
In order to create consistency between the courts in each jurisdiction, 'the Commonwealth
is considering possible amendments to the Migration Act to expressly provide
that, where a defendant raises the issue of age during proceedings, the
prosecution bears the legal burden to establish the defendant was an adult at
the time the offence was committed'.[69]
2.42
Victoria Legal Aid also highlighted that the Migration Act does not make
explicit who bears the onus of proof in establishing age, and the law in other
states and territories appears unclear on this point. In Victoria, only one age
determination hearing in a people smuggling prosecution case has been finalised
‑ in that case, the prosecution conceded that the Crown bore the onus of
proof for the purpose of the hearing.[70]
Similarly, Legal Aid NSW supported the amendment in proposed new subsection
3ZQAA(2) to place the burden of proof on the prosecution to disprove the
person's claim that they are under 18 years of age. It argued that the present
position of the law is unclear as to who bears the onus of proof and that a
statutory provision would clarify the law.[71]
Standard of proof
2.43
Some submissions considered that the significant implications of an
inaccurate age determination suggest that the standard of proof should be
'beyond reasonable doubt' rather than 'on the balance of probabilities'. For
example, the Migrant and Refugee Rights Project commented:
[I]n light of the serious irremediable harms that inevitably
result from erroneous classification of a child as an adult in this context,
and the problems with x-ray evidence, we recommend that proposed s3ZQAA(4) be
amended to require the prosecution to prove beyond a reasonable doubt
that the person was 18 years or over at the time of the offence.[72]
2.44
In relation to proposed new subsection 3ZQAA(4), Legal Aid NSW also
recommended that the standard of proof needs to be 'beyond reasonable doubt,
not proof on the balance of probabilities'.[73]
It advised that '[t]he experience in NSW has been that in court wrist x-rays
have been accepted over concerns about reliability, and over concerns about
statistical problems, because courts only need to be satisfied on the balance
of probabilities'.[74]
2.45
However, an officer from the CDPP commented:
I think it would be very difficult to establish to that
standard that somebody is definitely over the age of 18 beyond any reasonable
doubt—just looking at the sorts of evidence we have had, because it can vary.
There might be cases where you have documentary evidence which can be
substantiated in a number of ways, so that you might be able to get there, but
certainly our experience has been that in these particular cases it is very
difficult to get documentary evidence or objective evidence to that standard.[75]
International law and human rights
2.46
Examples of the treatment of persons charged with people smuggling
offences who were later found to be children at the time of the alleged
offences were highlighted in a number of submissions. For example, Victoria
Legal Aid outlined that their clients spent an average of 6.9 months in
immigration detention before being charged, and spent an average of 9.3 months
in immigration detention and prison before having their charges withdrawn. One
client spent 16 months in detention and prison before people smuggling charges
were ultimately withdrawn.[76]
2.47
A large number of submissions highlighted the importance of compliance
with Australia's obligations under the United Nations Convention on the Rights
of the Child (CRC).[77]
In general, these submissions perceived the amendments proposed by the Bill as
enhancing Australia's compliance with the CRC and other international human
rights obligations of Australia. For example, the Western Australian
Commissioner for Children and Young People, Ms Michelle Scott, noted:
The [CRC] sets out a number of articles under which children,
defined as persons under the age of 18 years, are entitled to special
treatment, assistance and protection due to their vulnerability to abuse and
exploitation. The CRC specifies that all decisions in relation to children
should give primary consideration to the best interests of the child. Other
specific articles set out in the CRC are also of relevance in this matter,
particularly article 37 which contains provisions relating to the detention of
children. Article 37 requires state parties to ensure that children deprived of
their liberty are only done so as a measure of last resort and for the shortest
possible time. Where children are held in detention they should be able to
access legal advice and other support and, where appropriate should maintain
contact with their family. Children should also be separated from adults whilst
in detention unless it is not in the child's interest to do so.[78]
2.48
The Human Rights Law Centre also noted that article 37(c) of the CRC
expressly includes a requirement that 'every child deprived of liberty shall be
separated from adults unless it is considered in the child's best interest not
to do so'. It argued that 'detention of foreign-national children in Australian
adult prisons is a clear breach of Australia's obligation under the CRC' and
that the Bill's amendments would assist Australia to meet its human rights
obligations.[79]
2.49
Several submissions also noted the commentary of the United Nations Committee
on the Rights of the Child (UNHRC) in relation to identification and age
determination of children:
Prioritized identification of a child as separated or
unaccompanied immediately upon arrival at ports of entry or as soon as their
presence in the country becomes known to the authorities (art. 8). Such
identification measures include age assessment and should not only take into account
the physical appearance of the individual, but also his or her psychological
maturity. Moreover, the assessment must be conducted in a scientific, safe,
child and gender-sensitive and fair manner, avoiding any risk of violation of
the physical integrity of the child; giving due respect to human dignity.[80]
2.50
Other submissions drew attention to Australia's obligations under the
International Covenant on Civil and Political Rights (ICCPR).[81]
For example, the Migrant and Refugee Rights Project noted that the 'incarceration
of children in adult correctional facilities violates Australia's obligation
under the ICCPR to ensure that accused juveniles are separated from adults in
prison (article 10(2b))'.[82]
The Migrant and Refugee Rights Project also considered that holding persons
suspected of people smuggling offences 'in immigration detention for
arbitrarily long periods of at least several months' before being charged also
violates Australia's obligations under the ICCPR (articles 9(1), 9(2), 9(3) and
24(1)).[83]
2.51
The Commonwealth joint submission acknowledged the obligations of
Australia under both the CRC and the ICCPR[84],
and outlined the practices and approaches of Commonwealth agencies in dealing
with minors in accordance with these international law and human rights obligations.
In relation to age determination:
The Commonwealth aims to ensure that age determination of a
person is made at the earliest possible stage. In conformity with the views of
the Committee for the Rights of the Child, Australian authorities take into
account a range of considerations for borderline cases, including a person's
claim about age, the physical appearance of the individual, as well as his or
her psychological maturity. In the event of remaining uncertainty about the
person's age, the individual is given the benefit of the doubt that he or she
is in fact a minor.[85]
Commentary on specific proposed amendments in the Bill
Time limit on age determinations
2.52
Some submissions welcomed the proposed amendments in the Bill that would
require 'authorities to accurately determine the age of a suspected minor and
to do so within a defined and short timeframe'.[86]
However, the Commonwealth joint submission highlighted a number of practical
problems with the 30 day time limit proposed in the Bill for an investigating
official to make an application to a magistrate challenging a person's claim
about age after he or she has been taken into immigration detention. In
particular, it raised concerns regarding:
-
clarity over the meaning of 'application', which could
potentially burden courts by requiring them to urgently deal with applications
regarding age determinations with little notice;
-
operational concerns, including the time needed to gather
evidence about age;
-
the potential for false or delayed claims about age; and
-
the reference to a magistrate making age determinations (and not
a magistrate or a judge).[87]
2.53
Similarly, while the Human Rights Law Centre welcomed the Bill's
proposed clear and confined time limits:
[T]he need for expediency must be balanced against fairness
in the age determination process. Extensions of time may be necessary in some cases
to enable the investigating authorities to obtain appropriate evidence of the
suspect's age...[88]
2.54
Legal Aid NSW also did not support the proposal in the Bill for age
determinations to be made before magistrates and not judges. It recommended
that proposed new section 3ZQAA(2) be amended to include a 'magistrate or
judge'[89]
because:
The proposal would have the unintended consequence of
preventing age determination applications being made to District Court judges,
as this Bill refers only to an application before a 'magistrate'...District and
County Courts...are staffed by judges much more experienced in hearing complex
expert evidence and in discerning between competing claims to scientific
expertise.[90]
Youth justice facilities
2.55
Several submissions supported the proposed amendment in the Bill that
persons claiming to be under the age of 18 should be placed in a 'youth justice
facility' until their age is determined. [91]
For example, the Human Rights Law Centre argued that it is 'entirely inappropriate
for children, or persons claiming to be children, to spend long periods of time
in either immigration detention or prison facilities while awaiting formal
charges or age determination hearings'.[92]
2.56
However, the Commonwealth joint submission highlighted concerns with the
proposal, including that 'youth justice facility' is not currently a defined
term in the Crimes Act or the Bill. Further:
The rules governing the detention of minors in each State and
Territory are not uniform. As such, any definition of the term 'youth justice
facility' will require State and Territory consultation.[93]
2.57
The Commonwealth joint submission opposed the 'presumption of age' in
Item 3 of Schedule 1 of the Bill, arguing that it could lead to adults being
placed in 'youth justice facilities':
The effect of item 3 is that a person, regardless of their
physical appearance or any documentary evidence of their age, could claim to be
a minor and would have to be treated as such, including being remanded to a 'youth
justice facility'...Until the magistrate makes an order, investigating
officials would be required to detain the person in the youth justice facility
with other minors.
Where the person makes a late claim about age and the 30 day
time limit for age determination has expired, or is about to expire and there
is insufficient time to collect evidence of the person’s age, there is no
recourse to challenge the person's claim. It is not clear in these
circumstances how the criminal proceedings would be dealt with.
The Commonwealth considers it inappropriate that the
administration of justice should be affected on the basis of a person's claim
alone, particularly where there are significant incentives for making the
claim, such as avoiding mandatory minimum penalties. More importantly, a
presumption of age creates a serious risk for other minors detained in youth justice
facilities, where the person claiming to be a minor is an adult.[94]
2.58
The Australian Human Rights Commission recommended that 'proposed s 15(2)
of the Bill be amended to ensure that there is a presumption that an individual
awaiting trial for people smuggling offences who has been determined to be a minor
or who asserts that he or she is a minor be granted a Criminal Justice Visa and
be released on bail with appropriate conditions'.[95]
2.59
The Commonwealth joint submission noted that in 'both immigration and
criminal justice contexts, where a person claims to be a minor but the
available evidence indicates the person is an adult, the interests of the person
are balanced carefully against the interests of other minors in determining
appropriate housing arrangements'.[96]
The CDPP generally does not oppose bail for persons charged with people
smuggling offences claiming to have been a minor at the time of the offence.
Where bail is granted, the person is returned to immigration detention to be
housed in an appropriate facility for minors.[97]
Time limit on bringing people
smuggling charges
2.60
Several submissions broadly supported the Bill's proposed 14-day time limit
for charging persons suspected of people smuggling offences who are (or claim
to be) under 18 years of age. For example, the Australian Human Rights
Commission indicated that it would welcome 'the establishment of limits...on
the time taken to bring charges against a non-citizen in criminal proceedings
relating to people smuggling offences'.[98]
2.61
Victoria Legal Aid strongly supported the establishment of statutory
time limits for the laying of people smuggling charges. In the view of Mr Saul
Holt these are 'extraordinarily simple prosecutions' where persons of Indonesian
origin on vessels with asylum seekers arriving in Australian waters are
'obviously prima facie likely to be charged with people smuggling offences'.[99]
Mr Holt argued that the early laying of charges against accused people
smugglers 'should not hamstring the AFP' and would mean accused people
smugglers are under the supervision of a court and entitled to legal
representation:
[O]ur view is that it is better for that person to be subject
to a charge and therefore be under the supervision of a court and have access
to legal advice than to be held in immigration detention limbo for lengthy
periods of time before age determination is resolved.[100]
2.62
However, the Commonwealth joint submission highlighted that the Bill
would be inconsistent with subsection 15B(1) of the Crimes Act, which provides
that 'a prosecution may commence at any time for a Commonwealth offence that
carries a maximum penalty of imprisonment for six months or more for a first
conviction'.[101]
The proposed 14-day time limit would have 'serious consequences for the administration
of criminal justice, the independence and effectiveness of investigating officials,
and may undermine the Commonwealth's ability to conduct people smuggling prosecutions'.[102]
Additionally, the Commonwealth joint submission considered that the Bill's
proposed time limit would not be 'operationally' feasible because of the
practical delays and challenges for the AFP in gathering evidence and
investigating people smuggling offences.[103]
These include certain legislative requirements, limited numbers of qualified
interpreters, and a reliance on foreign law enforcement authorities for the
collection of evidence.[104]
2.63
At the public hearing, an officer from the AFP noted that the AFP
benchmark for average time in detention between interception of a people
smuggling vessel and charging a people smuggling suspect is 90 days. However,
the officer noted that currently 'on average, it is 104 days between intercept
and change'.[105]
Committee view
2.64
The Bill has highlighted many of the complex obstacles facing Australian
authorities in relation to age assessments and the periods of detention which
persons accused of people smuggling offences may face while assessments and
determinations are made regarding their age. The lack of an accurate scientific
method of age determination presents a significant challenge in relation to the
prosecutions of persons who may have been underage at the time of people
smuggling offences. Further, Australia's policies and protections for children
mean that there are incentives for adult people smugglers to falsely claim to
be underage. As Victoria Legal Aid noted, these prosecutions 'give rise to
genuine competing public policy considerations'.[106]
2.65
In this context, the committee anticipates that the recent procedural
changes made by the Australian Government in relation to age assessments for
persons intercepted on people smuggling vessels, implemented after the Bill's
introduction and referral to the committee, will help ensure that those who are
underage will be promptly returned to their country of origin. Following this
procedural change in December 2011, persons on a people smuggling vessel are
only to be referred to the AFP for investigation if DIAC assesses the person to
be an adult. Accordingly, the committee does not consider that the proposed
amendments in the Bill are an appropriate solution in addressing the challenges
inherent in prosecutions for people smuggling offences where the accused might
have been a child at the time of the alleged offence.
2.66
Currently, only x-rays of the hand and wrist are a prescribed procedure
for determining age under the Crimes Regulations 1990. However, the committee
notes that courts may take into account a broad range of evidence in making a
determination regarding a person's age. Recent announcements by the Australian
Government mean that voluntary dental x-rays and interviews to assess age are
now also available to those persons accused of people smuggling offences who
claim to be children. In this context, the committee acknowledges that the Australian
Government is considering adding dental x-rays as a prescribed procedure under
the Crimes Regulations.[107]
2.67
While the committee acknowledges the limitations of wrist (and dental)
x-rays in assessing age, it does not consider as appropriate the Bill's
proposed removal of
x-rays of a person's body as a prescribed procedure for determining age. The
evidence during the inquiry indicated that many persons accused of people
smuggling offences have been found to be children as a result of x-ray age
assessment procedures, and consequently have been repatriated.[108]
It is clear that x-ray age assessments can operate for the benefit of
defendants who are children. In the view of the committee, Australian courts
are competent to assess the forensic value of evidence placed before them, and
should have access to all relevant evidence in determining the age of a
defendant, including x-ray age assessments where necessary.
2.68
The committee appreciates the medico-ethical concerns raised regarding
the use of x-ray procedures for non-therapeutic purposes. However, in the
opinion of the committee, the risks of the low levels of radiation involved are
outweighed by the potential benefits to the defendant (where they are assessed
to have been a child at the time of the alleged offence) and to the
administration of justice.
2.69
Evidence presented to the committee during the inquiry suggests that
some persons accused of people smuggling offences have been detained in Australia
for long periods before courts have determined they were children at the time
of the offence. The committee considers that Australian authorities should
continually endeavour to reduce the time taken for age assessment and determination
processes. However, the committee does not support the Bill's proposed 30-day
time limit for age determinations. The committee agrees with the evidence from
AGD, the AFP and the CDPP that the practical difficulties of this proposal
would not render it feasible. For example, it is unclear how a defendant who
was clearly an adult, but who claimed to be a child after the proposed 30-day
time limit, would be treated under proposed new section 3ZQAA of the Bill.
2.70
Similarly, the committee holds concerns regarding the proposal in the
Bill that all persons charged with people smuggling who are, or who claim to
be, children at the time of the offence should be remanded in a 'youth justice
facility'. As the Commonwealth joint submission noted, this proposal could
potentially lead to adults charged with people smuggling offences falsely
claiming to be children and, consequently, these adults being detained in
facilities with children.
2.71
The Bill's proposed 14-day time limit for authorities to bring people
smuggling charges received support from some witnesses and submitters during
the inquiry. The committee agrees that persons suspected of people smuggling
offences should be charged as soon as possible. However, the committee was
persuaded by the evidence of the AFP in relation to the time needed for
investigative procedures to take place prior to charges being laid. The
committee would be concerned if the AFP were pressured to expedite procedures
and lay people smuggling charges in order to meet an inappropriately
restrictive statutory deadline. Nonetheless, the committee considers that the
Australian Government should review the procedural practices and regulatory
requirements of the AFP to assess if these processes can be streamlined.
2.72
The Commonwealth joint submission advised that the Australian Government
is considering the possibility of amending legislation to expressly provide
that the prosecution bears the onus of proof that a person accused of people
smuggling was over 18 years of age at the time of the offence.[109]
The committee supports this clarification. While some submitters to the inquiry
argued that the standard of proof in age determinations should be raised to
'beyond reasonable doubt', in the view of the committee, the current standard
of proof of 'on the balance of probabilities' remains appropriate.
2.73
Considerable support was expressed by submitters and witnesses for a
multidisciplinary or holistic approach to age assessment for those accused of
people smuggling who claim to be children. In particular, the importance of gathering
information from the person's place of origin was repeatedly emphasised. This
was considered significant due to the lack of reliable documentary evidence of
age in many cases and the lack of an accurate scientific procedure for age
assessment.
2.74
This evidence gathering process has many practical difficulties,
including the requirement for persons to travel to foreign countries and the
possibility of additional delays. However, the evidence of Victoria Legal Aid
to the committee highlighted how this evidence gathering process from a
person's place of origin could assist those accused of people smuggling
offences who claim to have been children at the time of the offence. In the
view of the committee, the Australian Government should review this area to
identify if further assistance should be made available to the legal representatives
of those accused of people smuggling offences to undertake this form of evidence
gathering in appropriate circumstances. Potentially, this evidence gathering
process would give courts additional information upon which to make
determinations about age and, if undertaken promptly, may reduce the time
accused people smugglers spend in detention.
Recommendation 1
2.75
The committee recommends that the Australian Government review the Australian
Federal Police's procedural and legislative requirements in dealing with
persons suspected of people smuggling offences, with a view to facilitating the
prompt laying of charges where appropriate.
Recommendation 2
2.76
The committee recommends that the Australian Government introduce
legislation to expressly provide that, where a person raises the issue of age
during criminal proceedings, the prosecution bears the burden of proof to
establish that the person was an adult at the time of the relevant offence.
Recommendation 3
2.77
The committee recommends that the Australian Government review options
to support the capacity of the legal representatives of persons accused of
people smuggling offences who claim to be underage at the time of the offence
to gather evidence of age from their place of origin.
Recommendation 4
2.78
The committee recommends that the Senate should not pass the Bill.
Senator
Trish Crossin
Chair
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