Determining the ages of people smugglers

Man holding on to prison bars
It is the responsibility of the Australian Federal Police (AFP) to arrest and charge crew members alleged to have committed a people smuggling offence under the Migration Act 1958. These cases are then referred to the Commonwealth Director of Public Prosecutions (CDPP) for prosecution. As at 30 June 2011, there were 304 people smuggling prosecutions involving organisers, captain and crew before the courts (CDPP, 2010–11 Annual Report, p. 84).

Between 1 January 2009 and 18 October 2011, 170 crew members and 4 organisers had been convicted of people smuggling offences (Senate Estimates, Attorney General’s portfolio, 18 October 2011, p. 68).

Any crew member determined by the AFP to be a minor (under 18 years of age) is not sent to an adult prison, but is usually removed (unless there are other factors involved that may lead to a conviction—see page 147 of the Attorney General’s portfolio Senate Estimates hearing on 18 October 2010 for further details).
In order to determine the age of crew members claiming to be juveniles, a hand and wrist x-ray is often undertaken by the AFP.

Some say many of these crew members are actually adults trying to avoid prosecution and incarceration in Australia’s prisons. However, others claim that it is just as common for minors to be erroneously incarcerated in adult jails, with one media report on 29 October 2011 claiming that there were potentially as many as 40 Indonesian minors in Australian prisons, of which sixteen cases were under investigation by the Indonesian consulate. In one case attracting significant media attention, two Indonesian crew members originally deemed to be adults by the AFP but subsequently found to be minors were released (in June 2011) from a high security adult prison in Brisbane where they had been incarcerated for many months (see the Radio National program, ‘Casualties in the war on people smuggling’ on 30 October 2011 for more details on this case).

In response to criticisms of the accuracy of the wrist x-ray technique for age determination, the AFP released a press release in January 2011 defending its use; and in July 2011 the Minister for Home Affairs and Justice announced that while additional measures such as dental records, birth certificates and interviews would be employed in future to help determine the age of crew members, wrist x-rays would continue to be used by the AFP.

The wrist x-ray debate
The accuracy of determining age by using wrist or dental x-rays has been questioned by many experts in the field. In August 2011 several medical professional organisations, including the Royal Australian and New Zealand College of Radiologists, wrote to the federal government expressing concerns on the use of bone x-rays for age assessments. A follow-up article in the October issue of Australian Doctor argued that the ‘unethical use’ of ‘very inaccurate’ wrist or dental x-rays to determine age should cease, pointing out that the practice is unlawful in the United Kingdom.

Britain’s Children's Commissioner, Sir Al Aynsley-Green, has strongly criticised Australia's use of wrist x-rays to determine the ages of children, stating that the federal police's use of them to assess the ages of Indonesian crew members of asylum seeker boats was ‘unethical’ and ‘inaccurate’.

The Victorian and Queensland child commissioners agree, stating that this method is a ‘bizarre’ way to find out the ages of vulnerable children. They have called for the appointment of a national child commissioner to help protect the rights of any children possibly facing lengthy sentences in adult jails.

What are the alternatives?
An article published in Australian Family Physician in 2008 on age determination recommended the use of a model for age assessment based on that of the Royal College of Paediatrics and Child Health in London. Under this model the college argued that ‘there is no single reliable method for making precise estimates’ and that basic information on demographics derived from interviews is generally sufficient. Although they vary considerably in methodology, such ‘social assessments’ are carried out in Germany, Austria, Sweden, Ireland, the UK and the USA according to a UNICEF paper that reviews age assessment practices internationally. Other assessment practices, policies and legislation in Europe are outlined in a recent paper by the International Save the Children Alliance in collaboration with the United Nations High Commissioner for Refugees (UNHCR), Review of current laws, policies and practices relating to age assessment in sixteen European Countries.

In Australia, the Department of Immigration and Citizenship (DIAC) does not require the use of wrist x-rays, but instead has been piloting an interview technique to determine the age of asylum seekers arriving by boat (not crew members). Under this technique immigration officials balance a range of ‘risks’ and take a ‘benefit of the doubt’ approach during interviews to assess the credibility of claims by individuals. During the October 2011 Senate Estimates hearings DIAC outlined the outcomes of the pilot:
We undertook a pilot in terms of age determination which involved a detailed interview technique, with two skilled DIAC officers interviewing people who had declared themselves as being under 18, but whom we suspected might have been older. Following that pilot process, which was undertaken in July-August 2010, out of 60 people interviewed, about 33 were found to be over 18 years of age. We have since extended that pilot to a larger group of people, and that process has taken place since August this year. Over the period from 5 August to 30 September, we interviewed 121 unaccompanied minors, and 30 of those have been assessed as being adults.
Whether such alternatives may become established practice in other agencies remains to be seen, but there have certainly been instances where the CDDP has been forced to drop cases against crew members due to concerns that the wrist x-ray method to determine age is inaccurate.

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Flagpost is a blog on current issues of interest to members of the Australian Parliament

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