CHAPTER 2

Case statistics and appropriateness of detention

2.1 Paragraph (a) of the committee's terms of reference relates to whether any Indonesian minors are currently being held in Australian prisons, remand centres or detention centres where adults are also held, and the appropriateness of that detention. This chapter outlines the information provided during the inquiry by Commonwealth agencies and other stakeholders regarding the cases of Indonesian boat crew suspected of people smuggling who claim to be minors. The chapter also discusses the detention arrangements for such individuals, and the processes undertaken by the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP) where the age of the suspect is in question, in light of Australia's human rights obligations under international law.

Case statistics of boat crew who claim to be minors

2.2 Several Commonwealth agencies provided the committee with information regarding the number of recent cases where individuals suspected of people smuggling have claimed to be minors at some point since their arrival in Australia. Other submitters with knowledge of such cases also made claims regarding the number of Indonesian minors currently detained or imprisoned in Australia.

Current detention of crew members who may be minors

2.3 The joint submission from the Attorney-General's Department (AGD) and the Australian Federal Police (AFP) (AGD/AFP submission) advised that, as at 8 June 2012, there were no Indonesian nationals who have been assessed as minors by the Department of Immigration and Citizenship (DIAC) currently being detained in adult immigration facilities pending removal or prosecution, and no Indonesian nationals assessed as minors who are being prosecuted for people smuggling offences, or being held in adult correctional facilities pending prosecution.[1] However, the AGD/AFP submission also stated that the AFP is currently investigating two persons suspected of being repeat offenders who may be minors, and that these individuals are being treated as minors in immigration detention.[2]

2.4 In response to a question on notice, AGD provided the committee with updated figures stating that, as at 15 August 2012, the Australian Government was aware of 33 ongoing cases where Indonesian nationals suspected of people smuggling offences in immigration detention or prison are currently claiming to be minors.[3]

2.5 The Human Rights Law Centre contended that, while individuals assessed to be minors by the Australian authorities may not be unlawfully detained, a number of children have previously been incarcerated in adult correctional facilities—often for long periods of time—before being able to establish their status as a minor.[4]

2.6 The International Commission of Jurists Australia (ICJA) argued that, although AGD has recently reviewed 28 cases where age has been raised, the total number of Indonesian minors held in prisons, remand centres or detention centres awaiting charge or trial, or being detained for the purposes of the 'administration of criminal justice' more broadly, is likely to be much greater.[5]

2.7 Mr Ross Taylor from the Indonesia Institute informed the committee that, based on the experience of its members working with Indonesians in prisons in Western Australia, the Indonesia Institute is of the belief that 'there are probably still four to five minors in the Albany maximum security prison today'.[6]

Information from state and territory jurisdictions

2.8 The committee received information regarding the detention of Indonesian minors in correctional facilities in several states and territories.

2.9 The Northern Territory (NT) Government observed that there are currently 37 Indonesian prisoners in NT prisons, remand centres or police facilities, none of whom are minors.[7] The Queensland Government stated that it has no evidence to suggest that any of the 67 prisoners held in Queensland on people smuggling charges are minors. It noted that, in the past, three alleged people smugglers who claimed to be minors were held at Arthur Gorrie Correctional Centre, segregated from the general prison population, before the charges were dropped and the individuals returned to Indonesia.[8] The Australian Capital Territory (ACT) Government stated that two individuals are currently housed in ACT correctional facilities, and that it is confident the individuals are well into adulthood.[9]

2.10 The Victorian Equal Opportunity and Human Rights Commission also provided details regarding the number of people smuggling cases prosecuted in that state. As at 1 December 2011, 54 individuals were being held in detention in Victoria on aggravated people smuggling charges, and there have been reported cases of suspected people smugglers who claim to be minors being held in maximum security adult prisons in Victoria pending their trial.[10] It has been reported that one in ten of those prosecuted in Victoria to date have been found to be minors.[11]

Number of minors removed from Australia since September 2008

2.11 In their submission, AGD and the AFP informed the committee that, between September 2008 and 8 June 2012, 147 people smuggling crew had been removed to their country of origin because they were assessed to be minors, given the benefit of the doubt by the AFP or the CDPP, or were found by a court to be a minor. This figure includes 95 individuals since July 2011.[12]

2.12 The AGD/AFP submission stated that between 8 December 2011 and 24 May 2012, 78 crew members had undergone the new DIAC age assessment processes, with 35 of these individuals assessed as minors and 43 as adults. As at 8 June 2012, 30 of the 35 minors had been removed to Indonesia.[13]

2.13 At the committee's public hearing on 24 August 2012, AGD officials updated the committee, advising that, as at 22 August 2012, 94 crew members had been removed to Indonesia as minors since 8 December 2011.[14]

CDPP prosecution statistics

2.14 The CDPP informed the committee that, since September 2008, it has conducted 405 prosecutions for people smuggling offences where the matter has resulted in a conviction, acquittal or been discontinued. As at 30 May 2012, the CDPP is prosecuting a further 158 individuals on people smuggling charges across eight Australian jurisdictions.[15]

2.15 Of the cases referred to the CDPP by the AFP, the CDPP advised that there have been 104 people who at some stage raised the issue of being a minor at the time of offending, or where a wrist x-ray had been conducted or referred to in the CDPP's correspondence file. Of these 104 matters:

28 matters resulted in conviction;
six matters resulted in acquittal;
two matters were never charged;
ten matters are still before the courts; and
58 matters were discontinued by the CDPP.[16]

2.16 The CDPP also provided information regarding the number of these cases which involved a formal age determination hearing in the courts. According to the CDPP, 13 cases have involved a formal age determination hearing. In seven of these cases, the court was satisfied that the individual was over 18, while in six cases the court determined that it was not satisfied the individual was over 18 years of age.[17]

2.17 In all cases where the age determination hearing found that the individual was underage, the prosecution was discontinued by the CDPP. Of the seven cases where the individual was found to be over 18: three resulted in convictions; one resulted in an acquittal; and three cases were discontinued by the CDPP subsequent to the age determination hearing.[18]

Appropriateness of detention of minors

2.18 Submitters raised various concerns relating to the detention of boat crew who may be minors, and potential breaches of Australia's human rights obligations under the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention on the Rights of the Child (CRC). These included concerns in relation to the length and location of detention for suspected people smugglers who claim to be minors, access to prompt legal aid for these individuals, and access to judicial review of decisions in their cases.

Relevant provisions of the ICCPR and the CRC

2.19 Under Article 9 of the ICCPR, a person shall not be subject to arbitrary detention, and shall not be subject to pre-trial detention unless exceptional circumstances exist. Further, Article 10 of the ICCPR provides that persons deprived of liberty, including immigration detention, must be treated with dignity and humanity, and that juveniles in detention must be separated from adults.

2.20 Article 3 of the CRC provides that the best interests of the child must be a primary consideration in every decision that affects minors.[19] It also provides that signatories must: ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her; and take all appropriate legislative and administrative measures to achieve this end.

2.21 Article 37 of the CRC provides that no child shall be deprived of his or her liberty unlawfully or arbitrarily, and the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.[20] Article 37 also provides that every child deprived of liberty:

shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age;[21]
shall be separated from adults unless it is considered in the child's best interests not to do so, and shall have the right to maintain contact with his or her family, except in exceptional circumstances;[22] and
shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.[23]

Length of time spent in detention for boat crew who may be minors

2.22 Several submitters claimed that in cases where individuals have been detained or imprisoned, only to be later released as minors, Australia has breached its obligations under Article 37(b) of the CRC that detention of minors shall be used only as a measure of last resort and for the shortest appropriate period of time.

2.23 For example, the Australian Lawyers Alliance argued that, under the current arrangements in Australia, the detention of persons alleged to be involved in people smuggling, including minors, is a measure of first resort rather than last resort.[24] In relation to the time spent in detention, the Indonesia Institute claimed that in cases where age is in dispute:

...the time taken to verify the age of the boat crew has consistently taken longer than two years. This has resulted in children being incarcerated in Australian Adult Maximum security jails for periods of 2-3 years without trial or their case being heard.[25]

Length of pre-charge detention in these cases

2.24 At an additional estimates hearing in February 2012, a representative from the AFP informed the committee that the average length of time held in detention pre‑charge for all people smuggling suspects was 161 days.[26] A representative from the AFP updated this figure at the public hearing for the current inquiry on 24 August 2012, stating that the average length of pre-charge detention is now 99.3 days.[27]

2.25 Based on information provided by the CDPP in its submission to the inquiry, in the 13 relevant cases since September 2008 where age determination hearings have taken place, the average time between arrival in Australia and the age determination decision was 429 days. Of the five of these 13 cases in which the court was not satisfied at the first age determination hearing that the individual was over 18 years of age, the average time between arrival in Australia and the court's decision was 504 days.[28]

2.26 Mr Philip Lynch from the Human Rights Law Centre (HRLC) told the committee that these timeframes are inconsistent with international standards and other comparable legal scenarios in Australia:

We note that the ICCPR requires that a person be detained for no longer than two to three days at the most without charge. Indeed, under Australia's anti-terrorism framework, [the Australian Security Intelligence Organisation] can only detain someone for the purpose of a complex terrorism investigation for a maximum period of seven days before seeking judicial renewal of detention.[29]

2.27 Ms Nicole Rich from Victoria Legal Aid argued that such pre-charge detention is unheard of in other parts of Australia's legal system:

With Commonwealth crime in particular—and I guess that would be the most analogous situation—typically, an arrest is made with charges laid almost immediately in those kinds of cases, for example, a case where someone is suspected of an offence of drug importation of some sort that is detected at the airport upon their coming into the country. They would be arrested there and then; it is not a matter of taking them away to detention and then 10 months of investigations before charges are laid. So that is a good analogy and that is why it is so unusual that there is such a long period of pre-charge detention in these cases including involving minors.[30]

2.28 Australian Lawyers for Human Rights (ALHR) expressed significant concern that 'it appears minors are being held in detention for significantly longer periods than their legal age counterparts as a result of time spent on determining their age'.[31] The HRLC argued that this current practice amounts to arbitrary detention of children. In particular, the HRLC noted that the reliance on the issuing of Criminal Justice Stay Certificates to hold persons suspected of people smuggling in immigration detention indefinitely without charge is particularly problematic in this regard.[32] The HRLC contended that the 'pre-charge detention of people smuggling suspects for long periods of time is manifestly inappropriate, unreasonable and unjust', and has led to Australia breaching its obligations under the ICCPR and the CRC.[33]

2.29 The Queensland Law Society recommended that pre-charge detention should be limited to a maximum of 14 days to avoid inappropriate detention of minors.[34] The Migrant and Refugee Rights Project agreed that a 'highly restricted time limit on pre‑charge detention in relation to people smuggling offences' should be implemented.[35]

Access to prompt judicial review of detention decisions

2.30 Citing a recent case involving alleged people smugglers in the Northern Territory Supreme Court, the HRLC observed that for an individual detained on suspicion of people smuggling offences and held in Australia on a Criminal Justice Stay Certificate, there is no real and effective opportunity to challenge that person's detention or have it reviewed by a court. The HRLC contended that this situation is inappropriate, and in breach of Article 37(d) of the CRC.[36]

2.31 Several other witnesses argued that the legislature should provide for judicial oversight of cases where foreign suspects claim to be minors, in order to avoid the possibility of human rights breaches.[37]

Places of detention for individuals who may be minors

2.32 While Commonwealth agencies have stressed that individuals who claim to be minors are wherever possible held in facilities appropriate for minors,[38] several submitters commented that keeping alleged minors in any form of detention is unsatisfactory. For example, the ICJA submitted that it is 'unacceptable for minors to remain in detention while their age remains in dispute', and recommended that a presumption of minority status and removal from detention should be the norm rather than the exception where doubt as to the age of an individual exists.[39]

2.33 The Australian Psychological Society (APS) asserted that, apart from the legal implications of detaining minors, the negative psychological impacts of detention on children and young people lead to poor mental health, developmental risks and traumatic experiences. The APS urged that Indonesian minors should not be held in detention for these reasons.[40] This view was supported by the Royal Australian and New Zealand College of Psychiatrists, which argued that minors placed in adult prison facilities are at risk of exploitation and psychological trauma.[41] Submitters and witnesses also raised anecdotal evidence of cases where Indonesian minors imprisoned in adult facilities in Australia have been subjected to threats and physical or sexual abuse.[42]

2.34 National Legal Aid (NLA) submitted that, pending age determination or charge, Indonesian minors should not reside in detention facilities unless all other avenues have been exhausted and it is absolutely necessary for security purposes.[43] As an alternative option to immigration detention, the Indonesia Institute suggested that suspected people smugglers who may be minors could be accommodated within the Indonesian community in Australia. It stated that it is important to investigate:

...the feasibility of these crew members being placed on 'bail' within the Indonesian community here in Australia whilst awaiting determination of their age. The crew members pose no threat to the Australian community and therefore should not be detained at a great expense in adult maximum security prisons.[44]

Access to legal aid and consular assistance for suspected people smugglers

2.35 Several submitters questioned whether the current policies and processes in place give Indonesian boat crew who claim to be minors prompt access to legal assistance, as required by Article 37(d) of the CRC.

2.36 AGD advised that all suspected people smugglers are given access to legal assistance, but acknowledged that this generally does not occur prior to the involvement of the AFP:

Legal aid funded lawyers provide legal advice and representation to people smuggling crew, both prior to charge and during court proceedings. This includes providing advice on whether to raise age as an issue and the most appropriate way to do so. Legal aid lawyers are also required to interrogate the evidence led by the CDPP and challenge it where appropriate.

Legal aid is generally engaged after the person has been referred to the AFP for investigation. Lawyers are not required earlier throughout DIAC processes, such as age assessment interviews, as these processes are administrative in nature and not undertaken for criminal justice purposes.[45]

2.37 A representative from DIAC confirmed that boat crew who claim to be minors are not routinely given access to legal advice during their initial interactions with DIAC. The representative advised that 'they do not have a matter that they are pursuing with the Immigration Department, so we are not in a position to provide them with legal representation'.[46]

2.38 The HRLC contested the assertion that legal aid is made available to individuals after their case has been referred to the AFP but before the AFP has laid formal charges, stating that 'suspects are ineligible for Legal Aid until charges are laid'.[47] Representatives from Victoria Legal Aid confirmed that Legal Aid Commissions are generally not contacted until the AFP has decided to press charges against an individual.[48] The ICJA reported anecdotal evidence that 'a number of individuals have been held in detention for 4-6 months without being charged and without having legal advice', and recommended that measures be implemented as soon as possible to ensure that every detainee who alleges to be a minor is provided with legal representation.[49]

2.39 NLA expressed concern that the detention of particular individuals, including minors or those who may be minors, is not being brought to the attention of either the relevant Indonesian consulate or legal aid commission quickly enough, leading to some individuals spending more time than necessary in detention, including in possibly inappropriate places of detention.[50] Ms Nicole Rich from Victoria Legal Aid told the committee:

...if this process is going to continue and boat crew are going to continue to be detained and eventually charged, a very transparent process needs to be put in place so that upon initial detention the relevant legal aid commission is notified and other relevant authorities including the Indonesian consulate are notified.[51]

2.40 Ms Edwina Lloyd, a solicitor with extensive experience defending accused people smugglers who claim to be minors, argued that suspected people smugglers should have access to legal representation before they are formally charged. She noted that suspects can be held in detention for significant periods before being charged. Ms Lloyd also argued that there should be permanent legal aid employees based at Christmas Island to provide legal representation to boat crew prior to any DIAC and AFP interviews.[52]

2.41 Mr Philip Lynch from the Human Rights Law Centre suggested that amendments to legislation could be made to ensure the timely notification of legal aid commissions:

There could be inserted a provision which makes it a condition of the issue of a criminal justice stay certificate that the relevant legal aid body be notified of the issue of a certificate, which is a trigger to offering assistance and representation to a person.[53]

2.42 An AFP representative advised that recent changes in how the AFP conducts its investigations in people smuggling cases mean that suspects are now given access to legal and consular assistance much earlier in the detention process than was previously the case:

Originally we would not be interviewing an alleged crew member until well into our investigation, which could be sometime after their initial detention. This would be the first time, from an AFP perspective, that they would be offered an opportunity to contact a lawyer. We recognised that this was not an ideal situation, in consultation with the embassy who also have a concern and want to know about their citizens, but there are privacy restrictions. We now bring that interview forward. We interview on Christmas Island very early in the process so that there is no doubt and there is clarity around their ability to contact the consulate and/or to get legal advice.[54]

2.43 DIAC informed the committee that consular notification generally does occur through the Department of Foreign Affairs and Trade (DFAT):

With regard to people smuggling crew, DFAT provides an initial notification to the Indonesian Embassy that a suspected illegal entry vessel has been boarded by Australian authorities and that Indonesian nationals, normally the crew of the vessel, are believed to be on board. DFAT provides this notification within three working days of the interception of the vessel, in accordance with the provisions of the Consular Arrangement. This notification is usually provided before the crew enter immigration detention and before any age assessment process has commenced. DFAT's notification makes no distinction between potential adults and minors. DFAT draws on information from Border Protection Command to alert the Indonesian Embassy.

Consistent with the obligations of the Vienna Convention on Consular Relations, DIAC offers consular access as soon as a person enters immigration detention and, when requested, facilitates consular access with the consent of the individual concerned. DIAC has an obligation to notify the Indonesian consulate of nationals held in immigration detention within three business days of their arrival.[55]

2.44 DIAC commented that it alerts Indonesian consular officials of the identity of detained people smuggling suspects only when the individuals consent to their personal information being provided:

If the detainee is an Indonesian national and does not consent to consular access, or remains silent in regards to consent, DIAC will inform the Indonesian consulate that a national of Indonesia has been detained. However, in accordance with [the Privacy Act 1988's] requirements, DIAC will not provide the consulate with any information that may identify the individual...Additionally, on a weekly basis, DIAC provides a list of Indonesian crew held in detention to the Indonesian Embassy and all Consulates, DFAT, AGD and Jakarta Post.[56]

Access to contact with family members for suspected people smugglers

2.45 Submitters and witnesses also raised the issue of access to contact with family members for suspected people smugglers who claim to be minors. Victoria Legal Aid raised the case of Syarifudin Min, who was detained from July 2010 until December 2011, and was unable to contact his family in Indonesia for four months after his arrival in Australia, by which time his family assumed he was dead.[57]

2.46 Mr Mark Plunkett, a barrister with significant experience representing Indonesian nationals accused of people smuggling offences who claim to be minors, raised a case where he represented three clients who were detained in Australia and unable to contact their families in Indonesia for almost a full year:

One of the boys had a telephone number in his shoe and we obtained that. Our interpreter, through the simple expediency of making a few calls, was able to locate the parents of the child—something which had somehow defied the resources of the Commonwealth for a period of almost over a year...The parents thought their children had perished on the high seas. They were overjoyed to hear that they were alive but confused and perplexed as to why they were in prisons.[58]

2.47 Mr Plunkett raised another case where an accused people smuggler who claimed to be a minor gave family telephone contact details and instructions to his legal aid representatives, who never acted on his request to contact his family in Indonesia.[59] Mr Plunkett asserted that if Australians who claimed to be children were detained by police, their families would be notified by officials immediately, and that the same courtesy should be afforded to Indonesians detained in Australia:

[If] they were children arrested in Canberra by the Australian Federal Police it would have been irresponsible of the police not to make contact with the parents. Supposing someone was found at a drinking establishment at Green Square [in Canberra], the police would contact the parents. But no effort here, at any stage, had been made by Australia to contact the parents.[60]

2.48 Ms Edwina Lloyd raised another case in which an individual who claimed to be a minor was detained and imprisoned for over 18 months in Australia on people smuggling charges, without the Commonwealth agencies making any attempt to contact his family members.[61]

2.49 At the committee's public hearing, representatives from AGD and the AFP confirmed that, in general, those two agencies do not contact family members of people smuggling suspects or assist suspects in attempting to contact their families.[62] Regarding DIAC's role, a DIAC representative advised that all individuals arriving at Christmas Island on asylum seeker vessels, including boat crew, are able to make calls to family:

The very first step is, I think you would be aware of, is the 'alive call'. Clients make calls back to family, and that includes crew, to let them know that they are safely in Australia. That is the first contact that the client can make. There is actually no restriction on a client making contact with family members from a detention centre. A crew member is in the same situation as IMAs [irregular maritime arrivals] in that regard and can make that contact...There is basically no restriction on clients contacting people outside the detention centre.[63]

2.50 When asked why young Indonesian crew had not been able to contact their families in numerous cases raised by the AHRC and in submissions to the committee's inquiry, the DIAC representative stated:

I cannot answer that—unless the client themselves were not able to or did not make contact with their family. All I would say is there is no restriction on them making contact with their families. We would provide them with assistance to make a phone call.[64]

2.51 DIAC also informed the committee that, while it may assist detainees in contacting their families, no representatives of the Australian Government provide notice to family members directly. DIAC advised that 'the Indonesian Government has the responsibility to provide notification to family members of detainees'.[65]

Guardianship of minors detained in Australia

2.52 The issue of guardianship of Indonesian minors suspected of people smuggling offences was raised by various submitters. While the Minister for Immigration and Citizenship is the legal guardian of unaccompanied non‑citizen minors seeking asylum in Australia under the Immigration Guardianship of Children Act 1946, boat crew who claim to be minors and who are not seeking to reside permanently in Australia do not fall within the scope of this Act.[66] Consequently, such individuals have no formal legal guardian upon arrival in Australia.

2.53 DIAC noted that it engages an independent observer whose role is to ensure fair and reasonable treatment of suspected minors, but who ultimately has no legal responsibilities towards those individuals:

...as DIAC has a duty of care towards crew claiming to be minors, Life Without Barriers is engaged as an independent observer for them while they undergo any formal process in immigration facilities, including for criminal justice purposes of interviews and conducting wrist x-rays.

...The independent observer provides pastoral or physical support to a minor or person who claims to be a minor throughout interviews and other formal processes, and ensures the treatment of individuals in immigration detention is fair, appropriate and reasonable. However, the independent observer has no custody, guardianship or advocacy responsibilities.[67]

2.54 The Australian Lawyers Alliance (ALA) contended that, under the current arrangements, all 'appropriate legislative and administrative measures' have not been taken in Australia to ensure the protection and care of detained Indonesian minors through the proper appointment of legal guardians for such children, as required by Article 3(2) of the CRC.[68] Further, the ALA argued that the failure to appoint an effective guardian for unaccompanied minors amounts to a large oversight by the Commonwealth, and could be seen as a breach of the Commonwealth's duty of care.[69]

2.55 The Commissioner for Children and Young People, Western Australia suggested that, in order to ensure that the needs of vulnerable minors are not overlooked, an independent guardian with statutory responsibilities should be appointed to monitor the treatment of child detainees.[70] The Victorian Equal Opportunity and Human Rights Commission agreed that unaccompanied children should be provided with an independent guardian to act in the child's best interests.[71] National Legal Aid suggested that such guardianship arrangements could be monitored by the newly established National Children's Commissioner.[72]

Alleged mistreatment of minors in prison

2.56 Some submitters and witnesses noted anecdotal reports that some individuals who were imprisoned on people smuggling charges and who have now been released and returned to Indonesia due to concerns they may have been minors have been subjected to mistreatment or harassment during their incarceration in Australia.[73] It was also noted that there have been reports of several individuals making such allegations upon their return to Indonesia.[74]

2.57 An AGD officer informed the committee that AGD has made enquiries of correctional authorities in New South Wales and Queensland following allegations in media reports of such behaviour, and had received no information from these state authorities to support the allegations.[75]

Other issues associated with detention of boat crew who may be minors

2.58 The committee also received evidence regarding several other issues which relate to the detention of Indonesian people smuggling suspects who may be minors.

Ability of prisoners to remit monies earned in prison to family members

2.59 The committee received evidence regarding the ability of Indonesian prisoners in Australian prisons, including those who have claimed to be minors, to send back to their families in Indonesia a portion of any income earned while imprisoned. Mr Ross Taylor from the Indonesia Institute claimed that Indonesian prisoners in Western Australian prisons have been prevented from sending any money home in this way:

We know officially that DIAC actually requested the states' and territories' correction authorities to prevent people smugglers from attempting to remit money back home. Our understanding is that DIAC were unable to enforce that through federal laws, so they requested the state authorities to do so through the minister for corrections. That was the case in Western Australia, where their three or four dollars a day was garnished. This did not only apply to minors, of course, but to all Indonesian fishermen. As an organisation, we were quite frankly appalled at this—that we have a concept where if you are a murderer or a rapist or a paedophile you have the right to pass your two or three dollars through to your wife or your children, but if you are an Indonesian fisherman who has been caught up in this terrible trade you can send nothing back whatsoever. We assumed the reason for that was a naïve notion that, if the money were remitted back to their home village it would simply attract even more fishermen to undertake the dangerous journey to Christmas Island. If that is the case, we would just find that completely naïve.[76]

2.60 In response to this concern, AGD asserted as follows:

The Australian Government has arrangements in place to recover debts for the removal and detention of persons convicted of people smuggling. Under the Migration Act 1958, all non citizens removed from Australia are liable for the cost of their removal. In addition, persons convicted of people smuggling and illegal foreign fishing offences are liable for the costs of their detention.

To ensure removal and detention debts can be recovered, the Attorney‑General's Department has requested State and Territory corrections authorities to prevent convicted people smuggling crew from remitting their gratuity earnings overseas. This request was first made during a teleconference with State and Territory authorities on 8 April 2011.

The Attorney-General’s Department has, however, advised State and Territory authorities that, if they implement such a policy, persons convicted of people smuggling offences should be able to earn gratuities and use them to purchase consumables and other low-value quality of life items such as food and phone credit.[77]

Access to interpreters

2.61 Mr Mark Plunkett informed the committee that, in his home state of Queensland, access to Indonesian interpreters is very limited due to the high number of people smuggling cases being prosecuted. In relation to one of his clients, Mr Plunkett stated:

I could not get to the prison for a couple of weeks because we could not get an interpreter. Interpreters are in very, very short supply. Not only has this mass prosecution clogged up the courts of my state and occupied judicial and jury time and judicial resources beyond that which we had budgeted for and prevented other litigants from getting access to justice, it has also meant that there is a complete shortage of Indonesian interpreters. We could not get one.[78]

2.62 Ms Sarah Westwood from Victoria Legal Aid commented that, while access to interpreting services in Victoria has been adequate, the level of need for these services is high:

I think we have been fortunate in Melbourne that we have a number of very high quality Indonesian interpreters that we can turn to. I can certainly say that, at the present time, with a number of trials listed to commence simultaneously in Melbourne, the pressure on interpreting services to provide appropriate interpreting in the trial context is very great indeed.[79]

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