DISSENTING REPORT BY SENATOR HANSON-YOUNG
The Crimes Amendment (Fairness for Minors) Bill 2011 that was the
subject of this inquiry seeks to establish fair, timely and human rights
consistent procedures under Commonwealth criminal law regarding the prosecution
of non-citizens, alleged to be 'people smugglers' (boat crew working on asylum
seeker vessels), who say they are a child.
The reforms proposed by the Bill were supported by the following
Royal Australian and New Zealand College of Radiologists
Australian Human Rights Commission
Human Rights Law Centre
Migrant and Refugee Rights Project, University of New South
Australian Lawyers for Human Rights
Victoria Legal Aid
Australian Lawyers' Alliance
Queensland Commission for Children and Young People and
Western Australian Commissioner for Children and Young
Tasmanian Commissioner for Children
South Australian Guardian for Children and Young People
Victorian Child Safety Commissioner
New South Wales Commission for Children and Young People
Australian Capital Territory Children and Young People
Northern Territory Children's Commissioner
Immigration Advice and Rights Centre
Youth Advocacy Centre
As noted in the majority report, this Bill was introduced in the context
of increased numbers of people smuggling prosecutions, and amidst a growing
concern, amongst legal professionals, media, citizens and advocacy groups
across Australia, about unclear and unjust procedures in people smuggling
The Commonwealth agencies advised the Committee that as a general rule,
and purely on the basis of policy, a person who is suspected of people
smuggling but believed to be a child is returned by Australian authorities to
the child's country of origin without charge.
Evidence was given to the Committee that around one in four people
alleged to be people smugglers is returned to country of origin (often
Indonesia) on account of being assessed as minors. There is no suggestion on
the figures that children are increasingly being used as boat crew; according
to the Attorney-General's Department the proportion of minors has been
relatively consistent since 2008.
The Legal Aid Commissions in both Victoria and New South Wales provided
case studies outlining the way in which youthful, illiterate young people from
the Indonesian archipelago find themselves facing criminal charges in
Australia. Victoria Legal Aid, a submitter to the inquiry, has acted in a
number of people smuggling matters and submitted that the facts of the cases
usually resemble the below:
The crew are told that they will be transporting cargo and
the asylum seekers are only brought onboard once at sea.
The crew are only transferred onto the boat shortly before
Australian waters and the organisers then depart on a second boat.
The crew are only told that that the people they are
transporting are to be taken to Australia once they are on the High Seas and
The crew are told that once they transport people to
Christmas Island, Ashmore Reef or Cartier Island that they will be paid and
allowed to return home.
Victoria Legal Aid's statistics on the rate of findings of childhood in
age determinations show that one in ten persons held and charged in Victoria
for people smuggling turned out to be a child:
Of the 63 prosecutions of crew initiated in Victoria to date,
eight have been discontinued because the accused were found to be children.
This equates to 12.7%, or more than one in ten, accused having been found to be
The issue of the treatment of children has highlighted a range of
procedural problems in the prosecution of alleged boat crew, or 'people
smugglers’, which have the effect of exposing foreign national children to
unacceptable delays and time in custody which no Australian child, either in
Australia or overseas, would hope to face.
The Australian Greens were pleased to be informed by the Commonwealth
agencies appearing in this inquiry that since December 2011 the process has
been clarified so that, from that date, no person who has been assessed as a
child will be nonetheless referred to the Australian Federal Police (AFP) and
detained for months unnecessarily. The Commonwealth agencies could not be drawn
on why this change in policy was brought about, but we see it as affirmation of
the growing momentum of public and professional concern about the way these
cases are proceeding. However, such important matters as the long term
detention of foreign children are too important to be left to variable and
opaque policy positions, and as such, the Committee’s recommendations that
policy reviews continue do not go far enough.
Time limits on charges and age determination
One of the key aims of the bill was to establish reasonable timeframes
for the laying of charges and the conduct of age determination proceedings
before a court. Almost all submitters, including Victoria Legal aid, noted
that one that of the problems with long pre-charge detention in immigration detention
means 'there is no court with oversight of their condition or if the processes
are being followed'.
The inquiry unearthed statistics regarding the detention of Indonesians
that can only be described as shocking, for both children and adults charged
with people smuggling. Victoria Legal Aid submitted that their clients who were
ultimately found to be minors spent an average of 6.9 months in immigration
detention being charged, and spent an average 9.3 months in immigration
detention and prison before having charges withdrawn.
Some very startling evidence on pre-charge and pre-trial detention
statistics of Indonesian nationals was submitted to the inquiry. Senator
Hanson-Young raised those statistics in the public hearing:
I have some figures in relation to the length of time that
minors were held in some form of detention or on remand prior to a court ruling
that they were minors and their cases could not go ahead...The first I have is
one person being held for 734 days before the court found that they were a
child. The next one was held for 516 days before the court found that they were
a child. The next ones were held for 616 days, 490 days, 510 days. Those are
all cases where the court found that these Indonesian nationals were children.
...I point out that the last one I read out, 510 days, was a
case that ended in Victoria. The other cases were from WA. Then there are young
people who are detained, held, imprisoned as adults until the CDPP decide that
they do not have enough evidence and they do not want cases to fall over in the
courts, so they drop the cases. I will go through some of those as well. One
person was held for 735 days; for the other one it was 717 days; for another,
656 days; for another, 510 days before the court decided that this person was
indeed a minor; and, for another, 511. They are shocking lengths of time for a
child to be held in prison, in detention, before our Commonwealth department of
prosecution decides that in fact they are children and they should not be
The Joint Submission for the Commonwealth agencies, and the AFP evidence
given to Senator Hanson-Young in Additional Estimates on 13 February 2012,
clarified that the AFP aims for a pre-charge detention period of 90 days. This
time frame was quite rightly described by Mr Saul Holt from Victoria Legal Aid
in the hearing as 'still an extraordinary delay...something which in the ordinary
course many would find intolerable'.
NSW Legal Aid provided the Committee with useful comparative material
for Australians who are taken into custody for suspected criminal offending:
In NSW police can only hold people they arrest on suspicion
of committing and offence for four hours for investigation, and any further
detention requires a warrant be issued through a court. Under the Commonwealth
legislation the situation is similar.
In Victoria, the Crimes Act 1958 requires that police
release on bail or unconditionally release or bring a person in custody for an
offence before a bail justice or Magistrates' Court within a reasonable time of
being taken into custody. The Charter of Human Rights and Responsibilities
Act 2006 provides in part that a person in Victoria must not be subjected
to arbitrary arrest or detention and that a person charged with a criminal
offence is entitled to minimum guarantees including a guarantee to be tried
without unreasonable delay.
Even the so-called anti-terror legislation places times
limits on detention and requires court involvement in supervising
extended detention for investigation.
Similarly, Victoria Legal Aid commented:
If one reflects on the public outcry about the detention of
Dr Mohammad Haneef for a number of days without charge in 2007 on suspicion of
terrorism offences, it is difficult to reconcile how the Australian Parliament
can tolerate the systematic arbitrary detention of accused people smugglers
for, in the Victorian experience, an average of over seven months.
These unacceptably drawn out pre-charge and pre-trial periods of
detention were said by many submitters to be in breach our international
obligations. The Migrant and Refugee Rights Project submitted as follows:
In particular, inappropriate age determination procedures
result in (1) incarceration of children in adult correctional facilities, and
(2) exposure of children to the general human rights violations that affect all
individuals charged with smuggling offences, including lengthy and arbitrary
pre-charge detention, lengthy pre-trial detention, and the application of
mandatory minimum sentences. Each of these legislative and procedural failures
undermines compliance with Australia's human rights obligations under
international law, including under the International Covenant on Civil and
Political Rights ('ICCPR'), and, in the case of children, the Convention
on the Rights of the Child ('CRC').
The Commonwealth agencies argued that the provisions for timelines in
the Bill would be too onerous to meet on a practical level. They submitted
evidence that the current average time between intercept and charge is 104
Assistant Commissioner Jabbour told the Committee that it would not be
feasible to charge suspected people smugglers within the 14 day timeline
outlined by the Bill because the AFP would need time to interview the
passengers, departmental and customs officials and obtain statements with
specially trained interpreters.
The Australian Greens have more faith in the AFP's abilities to organise
initial investigations than to accept this evidence. As pointed out by legal
submitters, most of the witnesses and officials are easily accessible in secure
immigration detention on Christmas Island. There is no need to go into the
wider community to find them to make a statement. A brief of evidence
sufficient for the laying of charges does not necessarily need to be as full and
complete as the brief that will ultimately be relied upon by the prosecution at
trial. Further, the complexity and breadth of evidence required is likely to be
less considering the very clear circumstances in which the accused is
intercepted at sea.
The Australian Greens depart from the majority report which states that
it would place 'undue pressure' on the AFP to expedite procedures. We do not
consider it justified to renege on reasonable and human rights consistent
time-lines relating to the charging of vulnerable foreign nation children on
the basis of convenience to Australian agencies. It is not undue pressure on
the AFP to require that the AFP lays charges in a reasonable and expedited
manner that does not breach our obligations against arbitrary and unjust
detention of children.
Victoria Legal Aid urged the Committee to recommend the timelines in the
Bill because it is a feasible time line:
Two weeks is sufficient time for an accused to be interviewed
by the AFP on Christmas Island before being conveyed to another State or
Territory for a charge to be laid and prosecution commenced. The prosecuting
authorities would then be given adequate time to compile a brief of evidence.
In Victoria, this is typically three months.
We also note that while the Committee heard evidence that all young
Indonesian people are immediately given an opportunity to have a phone call
with a lawyer when initially taken into custody, this contradicts a large
volume of anecdotal evidence from amongst the legal profession and referred to
by the Migrant and Refugee Rights Project.
We also note the evidence given by lawyers that the Indonesian families
of their young clients had no idea where their child was for months and years,
and many believed them to have died. It is imperative that all effort are made
to notify the parents of the whereabouts and welfare of any person accused of
people smuggling who says they are a child.
The Australian Greens support the position of the legal professionals
acting in these matters that 'we should not be aspiring to three months delay;
we should be aspiring to no or very little delay...The generally accepted view
in international law is there should be no pre-charge detention in the absences
of exceptional circumstances'.
The Bill removes the taking and use of discredited wrist (or other
x-rays in the age determination processes. The wrist examination process is one
of the key delaying factors in the pre-trial process, as it only occurs in a
certain location (usually Darwin). The use of bone x-rays is a highly imprecise
science that has been rules out by paediatric medical experts, international
sports medicine bodies and international bodies.
The Australian Society of Forensic Odontology gave this account of the Gruelich
and Pyle method:
Hand/Wrist X-ray examination was designed as a tool to assess
general skeletal development and overall growth. The reference sample used was
a selection of 1000 middle-class American children who were born in the
1930s-1940s, aged from birth to nineteen years of age... It is this atlas that
is used in Australia for age estimations.
At no time was this atlas designed to determine chronological
age; it was designed as a tool for health workers to better assess a child's
skeletal development and overall growth. Clearly, the major drawback when using
this technique is that images included in the atlas were obtained some 60 years
ago from individuals who grew up on the other side of the world, under
environmental conditions totally different to the detainees being assessed.
Biological variation in human development means that any age
assessment based on GPRA analysis of growth markers will inevitably contain a
degree of error.
The Royal Australasian College of Physicians put in a submission that
was unequivocal about the use of wrist x-rays:
The RACP supports the Bill's proposal that wrist x-rays
should not be used to determine age as this method is not reliable or validated
for this purpose. The Gruelich and Pyle method (GP method) evaluates the bone
age of children by x-raying the left hand wrist.
There is room to investigate alternative methods of age
assessment to the methods currently used in Australia. The RACP suggests
investigating comprehensive assessments which may include psychological,
cognitive, developmental and cultural factors.
In reviewing and developing more comprehensive assessment
processes, a multidisciplinary approach is needed. The RACP recommends
government work with a range of professional disciplines, such as
paediatricians, social workers, psychologists and related professions, to
explore and develop comprehensive and balanced assessment processes.
This view was backed up by the peak body in the area of radiology, the
Royal Australian and New Zealand College of Radiologists:
We understand that there is a push from the Australian
government for a scientific/medical method for age determination in the accused
refugee population who claim to be juveniles.
However, we object to the current practice of relying on
wrist X‐rays or
the proposal to use dental X‐rays
as a means of determining age due to the lack of evidence that supports its use
in this way. Whilst there is no single medical way to accurately determine an
individual's age, the government should consider developing a process where age
is assessed in a number of ways; this is often referred to as 'holistic' age
assessment. This approach incorporates narrative accounts, physical assessment
of puberty and growth, and cognitive, behavioural and emotional assessments.
This peak body for radiologists ended their submission with a very clear
recommendation regarding wrist and dental x-rays: 'Bone age assessment should
not be used for this purpose in Australia'.
The Committee also heard from Professor Tim Cole, a Professor of Medical
Statistics at MRC Centre of Epidemiology for Child Health, UCL Institute of
Child Health, England, who has appeared throughout 2011 in 11 separate age
assessment hearings in Victoria, 9 of which ultimately saw charges against the
young person withdrawn by the CDPP.
Professor Tim Cole submitted as follows:
...Bone age is informative only in the minority of cases where
the individual says they are much younger than 18, say 14 or 15. In other cases
bone age is not informative...[T]hese arguments against the use of bone age apply
equally to the use of dental age assessment, based on the appearance of third
molars (wisdom teeth).
We note that in a Senate Budget Estimates hearing in 2011 the Department
of Immigration and Citizenship conceded that there is a 4-5 year margin of
error in relation to wrist x-rays.
Professor Michael Ditchfield, Chair of the Paediatric Imaging Reference
Group of the Royal Australian and New Zealand College of Radiologists deemed
the use of bone x-rays to be unworthy of being included in an age assessment,
even with other evidence, on the basis of the margin of error that means 'one
in five times it will be wrong'.
The Human Rights Law Centre supports the abolishment of bone x-rays on
the basis of its margin of error:
The HRLC reiterates the principle that any scientific procedure
used in the age determination process should be afforded a margin of error and
unreliable or discredited age assessment techniques should not be used in
Professor Tim Cole referred to a case he appeared in during 2011, in
which the prosecution had proceeded with charges even though the likelihood
that the defendant was under 18 was 61%. In doing so, the AFP and CDPP had
relied on the erroneous expert opinion a single doctor who is based in Perth,
who is a gastrointestinal radiologist rather than a skeletal radiologist or
paediatric specialist. The joint Commonwealth agencies also confirmed that the
same doctor is the expert referred to in their submission at page 20 as the
basis for their policy view.
The Australian Greens believe that relying on the expert opinion of a
single radiologist who is not actually an expert in the relevant field of
medicine is a highly disturbing practice and should immediately be reviewed by
Professor Ditchfield referred to the radiation caused to a child through
x-ray, which is a low dose but is nonetheless risky.
His expert opinion in explaining why the United Kingdom has ruled out bone
x-rays as an unlawful practices was this: 'it is very hard to justify
performing something that is not of a benefit to a person – where they are
actually disadvantaged by performing it'.
Professor Ditchfield confirmed that the government had apparently chosen
to disregard the concerns raised in a joint letter from peak radiology bodies
in Australian and New Zealand that was submitted to the Minister for
Immigration and the Attorney-General in August 2011, which raised concerns
about bone x-rays and offered to provide expert consultation on the issue.
The issue of parental consent should also be considered. Under
Australian medical law parental consent is relevant to medical procedures
relating to children. We query the ethical and legal appropriateness of 'offering'
a young person dental and wrist x-rays that may impact on radiation absorbed
into their bodies, not to mention have an impact on the legal case against
them. As currently stands, there is no, or very little, attempt made by
Australian authorities to seek out the parents of a young person prior to
returning the child to Indonesia and prior to conducting medical procedures
while in detention. The concern about parental consent was raised by the
Australian Society for Forensic Odontology:
In any investigation specifically focused on an age
assessment, the client must be informed fully of the reasons and 'informed
consent' must be obtained before any investigation is undertaken.
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.
There was some concern amongst submitters that abolishing the bone
x-rays altogether would mean that some children would miss out on being
returned to Indonesia at an earlier stage than trial stage. Regarding this, the
Commonwealth agencies submitted that 37 children have previously been returned
solely on the evidence of wrist x-rays. However, as the Committee heard
repeatedly from Commonwealth agencies in this inquiry and also in the most
recent Additional Estimates in February 2012, it is now the case that x-rays
are not relied on as sole evidence by any Commonwealth agency.
Mr Thornton told the Committee: 'we have attempted to assist the courts
by giving them some indication of what the probabilities are, and at the end of
the day, as it has been said, wrist x-rays are not a perfect system: they are
just one indicator'.
Yet the Commonwealth also said that x-ray scans are 'key evidence' in existing
...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 minor or adult.
The difference in evidentiary approaches between cases before and after
December 2011 would appear to be highly unjust and indicative of the lack of
clarity and fairness in this area of public prosecutions broadly.
Given the change in approach to evidence it is less likely that children
in the position of those 37 would necessarily miss out on being returned. It
would be an inconsistent position to point to the risks and uncertainties of
bone x-rays but accept those scans in a suite of evidence. If information is so
uncertain as to be practically irrelevant on an evidentiary basis, as is the
case put before the Committee by the medical experts from Australia and
elsewhere, then it should be abolished entirely.
Broadly, all medical and radiology experts, human rights advocates and
legal specialists (other than the Commonwealth agencies) supported the use of a
holistic age determination process. The Migrant and Refugee Rights Project
commented that both the UNHCR and the CRC require states to take numerous
sources of evidence into account when determining age. This could include 'comprehensive
assessments which may include psychological, cognitive, developmental and
The Australian Greens strongly support abolishing the use of bone x-rays
due to the risks and uncertainty expressed by medical experts, in favour of a
complete, holistic and expedient age determination process starting with the
initial interview with the Department of Immigration.
Assumption of age and accommodation while trial pending
This Bill confirms that people who claim to be minors will be treated as
such unless it is proven through age determination process that they are adult.
This includes mandating that no person who is possibly a child will be
incarcerated in an Australian adult prison or remand centre. This highly
regretful situation has indeed occurred in a number of cases where a young
person charged as boat crew was placed into an adult prison upon being charged,
and where they remained for some months.
While we endorse the Commonwealth's assurance that bail will ordinarily
not be opposed in relation to accused who claim to be children, it is
imperative that the accommodation of children out of adult prisons be clearly
enshrined in legislation.
We note the query about the terminology used by the Bill to indicate a
place of detention specifically for children, and will consider amendments that
clarify what this means across states and territories where criminal law
terminologies differ. The Commonwealth expressed some concerns about
technicalities of expression in the Bill.
Nonetheless the clear intentions of the Bill in this regard was
thoroughly understand and supported by many submitters, who asserted that the
Act must be clarified to require children to be detained in child-orientated
sections of immigration detention or on bail in the community.
We also note the comments provided by the Youth Advocacy Centre and
ChilOut, who both pointed out the singular situation in Queensland where
17-year-olds charged with Commonwealth offences are tried by the Queensland
criminal law system as adults. While the amendment suggested by the goes
somewhat outside the ambit of this Bill and inquiry, we recognise the concerns
raised and will consider amendments in this regard.
Onus in proving age
The Bill 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.
Legal representatives including Victoria Legal Aid told the Committee
that in a number of cases, they had been able to obtain a range of evidence
from the communities in the Indonesian archipelago in a matter of 3-4 days.
This process should occur as soon as possible, in order to save the high costs
of prosecuting children for people smuggling, both ethical and financial. It
should not be difficult for an Australian government authority to undertake the
same investigations. Many submitters supported this in relation to age
It is also essential that the Government thoroughly
investigates for any evidence which may be available from the accused person's
homeland. This should be done early in the process rather than waiting for an
external source, such as a prosecutor or defence counsel, to gather the
information. It is also essential that the benefit of the doubt is given when
the assessment of a person's age is inconclusive rather than risking the
detention of juveniles in adult prisons.
The Australian Greens disagree with the majority report's conclusion
that the change of policy and practice since December 2011 is enough to 'ensure
that those who are underage will be promptly returned to their country of
origin'. This conclusion is not supported by the volume of evidence put before
the Committee. The question of early referrals will assist some minors but has
no bearing on the extended and delayed processes that occur further down the
The Australian Greens also prefer the evidence of medical experts to the
view of Commonwealth authorities in regards to wrist and dental x-rays.
The Australian Greens do not agree that the timelines suggested by the
Bill are not feasible, on the basis that legal advocates and medical experts
have confirmed timelines of far less than 30 days are possible and proven so in
numerous case studies.
The Bill be amended to require facilitation of timely access to legal
advice, and that regulations require that children are afforded communication
with their family.
Item 3 of Schedule 1 of the Bill be amended so that proposed new subsection
3ZQAA(3) of the Crimes Act 1914 provides that the 30 day limit on
bringing an application to a magistrate to determine a person's age applies
from whichever is first of:
the date the person is taken into immigration detention; or
the date on which the person first asserts that he or she was a
minor at the time of the alleged offence.
That the Bill be passed by the Senate.
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