Due to the time available to the committee in conducting the inquiry, and
the balance of the issues addressed in submissions, the committee has chosen to
focus on Schedule 3 of the Bill, which deals with amendments relating to people
smuggling investigations and prosecutions. Support from submitters for other
schedules in the Bill is also noted.
Amendments dealing with people smuggling matters (Schedule 3)
The provisions in Schedule 3 of the Bill attracted some commentary from
submitters. Australian Lawyers for Human Rights noted that, while it was unable
to sufficiently assess the Bill in the time available, it would 'likely
support' the proposed amendments dealing with people smuggling, as they would
improve the consistency of Australia's law with human rights standards.
The Joint Australian Government Submission (Government Submission)
expressed support for the measures in Schedule 3, stating that the proposed amendments
will 'enhance the effectiveness and efficiency of the investigatory and
prosecutorial process' in people smuggling cases.
Removal of wrist x-rays as a
prescribed procedure for age determination
Subsection 3ZQA(1) of the Crimes Act 1914 (Crimes Act) provides
that the defined term 'age determination information' means 'a photograph
(including an X-ray photograph) or any other record or information relating to
a person that is obtained by carrying out a prescribed procedure'. Item 1 of
Schedule 3 of the Bill would amend subsection 3ZQA(1) by omitting the
words 'a photograph (including an X-ray photograph) or any other record or
information' and substituting 'a record, or information'.
Subsection 3ZQA(2) of the Crimes Act provides that the Crimes Regulations 1990
(Crimes Regulations) may 'specify a particular procedure, which may include the
taking of an X-ray of a part of a person's body, to be a prescribed procedure
for determining a person's age'. Item 2 of Schedule 3 would amend subsection
3ZQA(2) by omitting the reference to taking an x-ray of a part of a person's
The Explanatory Memorandum (EM) states that these amendments are
'necessary to respond to concerns about the accuracy of wrist x-ray materials
in making a determination in relation to a person's age'.
The EM also notes that consequential amendments to the Crimes Regulations
will be required to remove wrist x-rays as a prescribed procedure for age
Previous consideration in committee
and other inquiries
The removal of wrist x-rays as a prescribed procedure for age
determination under the Crimes Act is an issue that has been canvassed for some
time. As early as 2001, when wrist x-rays were first prescribed as an age
determination procedure under the Crimes Act, concerns were raised regarding
the reliability of this method to clearly determine the age of individuals.
During this committee's inquiry into the Crimes Amendment (Fairness for
Minors) Bill 2011, submitters and witnesses criticised or raised concerns with
the use of wrist x-rays to determine the age of alleged people smugglers. These
included medical experts such as the Royal Australian and New Zealand College
of Radiologists, the Royal Australian College of Physicians, Professor Tim Cole
and Professor Sir Al Aynsley‑Green Kt.
Similar concerns were raised by submitters and witnesses during the Senate
Legal and Constitutional Affairs References Committee
(References Committee) inquiry into the Detention of Indonesian minors in
The main concerns raised in relation to the use of wrist x-rays are that:
the accuracy of wrist x-rays as an age assessment tool has been
- variations in skeletal maturity based on environmental and ethnic
factors lead to inaccurate conclusions of wrist x-rays;
the skeletal atlases used for most wrist x-ray age assessments
are out-dated and not suited to individuals of Indonesian ethnicity; and
the use of x-rays for non-medical purposes raises serious ethical
The References Committee recommended:
Subject to the advice of the Office of the Chief Scientist
regarding the utility of wrist x-rays as an age assessment tool, and noting
evidence received by the committee raising significant doubts about this
procedure, the committee recommends that the Australian Government consider
removing wrist x-rays as a prescribed procedure for the determination of age
under...the Crimes Act 1914 and regulation 6C of the Crimes Regulations
In 2012, the Australian Human Rights Commission (AHRC) also considered
the use of wrist x-rays for age assessment in people smuggling cases, in its report
An age of uncertainty: Inquiry into the treatment of individuals
suspected of people smuggling offences who say that they are children.
The AHRC recommended that amendments to the Crimes Act should be made to
restrict or limit procedures using x‑rays as part of a prescribed
procedure to determine age, and that wrist x-rays should not be able to be used
in legal proceedings as evidence that persons are over 18 years of age.
Evidence presented to the current
The Government Submission noted that the proposed amendments to
section 3ZQA of the Crimes Act, along with future proposed amendments to
the Crimes Regulations, would address Recommendation 1 of the
References Committee inquiry, as well as the recommendations made by the
AHRC in relation to the use of wrist x-rays.
This submission also noted:
[These amendments] will not affect current practice as wrist [x-rays]
have not been offered as a method of determining age by the Australian Federal
Police since August 2011, unless requested by the defendant. It remains open to
[the Department of Immigration and Citizenship], the [Australian Federal
Police] and [the Commonwealth Director of Public Prosecutions] to use any
method or combination of methods to determine whether a person is more likely
than not to be a minor...
The proposal to remove wrist [x-rays] as a prescribed
procedure will not change current age determination processes, but will respond
to criticisms about the use of wrist [x-rays] and is supported by the Office of
the Chief Scientist which has expressed the view that there is not
sufficient scientific data to support the use of wrist [x-rays] to determine
whether a person is a minor.
Amendments to the Migration Act
relating to people smuggling matters
Item 4 of Schedule 3 would insert proposed new sections 236C-236F into
the Migration Act, which deal with several other matters in relation to people
smuggling investigations and prosecutions.
Courts to take into account time
spent in immigration detention when sentencing
Proposed new section 236C provides that, when imposing a sentence on an
individual convicted of people smuggling offences, a court must take into
account any time the individual has spent in immigration detention. In relation
to this amendment, the EM states:
Experience has shown that the crew of suspected irregular
vessels (SIEVs) can spend lengthy periods in immigration detention between
arrival in Australia and possible conviction for people smuggling. However, as
immigration detention is a non-custodial and non-punitive administrative
arrangement, there may be doubt as to whether section 16E of the Crimes Act,
and relevant State and Territory sentencing laws, allow a court to take time
spent in immigration detention into consideration when sentencing individuals
for people smuggling under the Migration Act...
The aim of this amendment is to ensure that, when imposing
mandatory minimum penalties for people smuggling offences, all pre-sentence
detention, whether administrative or custodial, is taken into account for
people smugglers. It will also ensure consistent treatment of time spent in
custody and immigration detention throughout State and Territory jurisdictions.
The Government Submission noted that, in practice, courts are already taking
time spent in immigration detention and remand into account when sentencing.
Burden and standard of proof in age
In its report on the Crimes Amendment (Fairness for
Minors) Bill 2011, this committee recommended 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
This recommendation was reiterated by the References Committee in its inquiry
into the Detention of Indonesian minors in Australia.
Item 4 of Schedule 3 of the Bill seeks to implement these committee
recommendations. Proposed new section 236D of the Migration Act would clarify
the burden and standard of proof in relation to proceedings for people
smuggling offences where the defendant claims to have been aged under 18 years
at the time the alleged offence was committed. This proposed new section
provides that the prosecution bears the burden of proving, on the balance of
probabilities, that the defendant was aged 18 years or over at that time. The
Subsection 236B(2) of the Migration Act establishes that
mandatory minimum penalties for certain people smuggling offences 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...
Experience has shown that the majority of defendants being
prosecuted for people smuggling offences do not possess proof of age
documentation. This amendment ensures that such defendants are not unduly
prejudiced by being required to prove age. Generally, investigative age determination
processes establish age before a person is charged with a people smuggling
The Government Submission noted that this amendment reflects current
practice in people smuggling proceedings where the age of the defendant is
raised as an issue.
This is consistent with evidence given to the References Committee inquiry in
August 2012 by the then Commonwealth Director of Public Prosecutions,
Mr Chris Craigie SC, who stated that he would be comfortable with
this practice being codified in the Migration Act.
Use of evidentiary certificates in
people smuggling prosecutions
Proposed new sections 236E-236F provide for the use of evidentiary
certificates in the prosecution of people smuggling offences.
Proposed new section 236E provides that matters stated in an evidentiary
certificate are to be received as prima facie evidence in a court, and details
the types of information evidentiary certificates may contain. This includes
factual information in relation to the location and boarding of ships or
aircraft involved in alleged people smuggling activities, and the number of
passengers and crew on such vessels. In relation to the need for evidentiary
certificates, the EM states:
Different Royal Australian Navy (RAN) personnel and personnel
assigned to Border Protection Command (BPC) will observe various different
aspects of the boarding of a SIEV in Australian waters. To present a court with
a complete account of the boarding of a SIEV, it is necessary to obtain
evidence from a large number of RAN personnel and personnel assigned to BPC.
This creates a logistical difficulty for prosecuting people smuggling offences
as RAN personnel assigned to BPC have limited access to communications, other
than secure communications, and because the intercepting vessels can remain on
patrol for long periods for national security purposes.
It is important to minimise the time spent by RAN personnel
and personnel assigned to BPC providing evidence to law enforcement agencies
and appearing at court in relation to prosecutions of people smuggling
offences. It is in the interests of national security that the capacity of such
personnel to carry out border protection duties be restrained as little as
The evidentiary certificates inserted by this item will
contain a consolidation of relevant observations made by RAN, BPC, or other
relevant agency personnel, in the course of intercepting a SIEV or aircraft. In
this way, the information provided in an evidentiary certificate may not be
limited to the observations of one particular officer, although it will be
signed by an individual officer.
In preparing an evidentiary certificate, an officer will be
required to act in accordance with principles of administrative decision making
in deciding whether to include a matter.
Proposed new section 236F provides for certain procedural rules in
relation to evidentiary certificates. Under these provisions, a defendant or
their legal representative must be given adequate notice before the prosecution
may adduce an evidentiary certificate in court, and the person who signed the
evidentiary certificate may be called to appear and be cross-examined in
relation to the matters stated in the certificate.
The Government Submission noted that evidentiary certificates will
contain material that is not likely to be in dispute, and that an accused
person is entitled to challenge the contents of an evidentiary certificate in
Further, the Bill provides that any evidence given in rebuttal of an
evidentiary certificate 'must be considered on its merits and not discounted by
reason of the fact that an evidentiary certificate has been admitted into
Other Schedules of the Bill addressed in submissions
Some submitters commented on other aspects of the Bill, namely
amendments in Schedules 2 and 4.
Amendments supporting victims of
slavery, slavery-like and human trafficking offences (Schedule 2)
Australian Catholic Religious Against Trafficking in Humans commended
the amendments in Schedule 2 of the Bill, stating that extending vulnerable
witness protection to victims of slavery, slavery-like and human trafficking
offences 'will be one way of reducing the level of re-traumatization of
individuals giving evidence in relation to the harm they have suffered'.
Anti-Slavery Australia expressed strong support for these amendments,
and in particular welcomed the following aspects of the proposed changes:
- the use of closed circuit television in the giving of evidence of
vulnerable adult and child witnesses and special witnesses;
- the reduction of contact with or removal of the offender and
public when giving evidence in court; and
- the provision for an accompanying support person to be present
while giving evidence.
Anti-Slavery Australia also expressed support for the introduction of a victim
impact statement scheme in the Crimes Act for victims of federal offences.
Amendments to the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 (Schedule 4)
The Clean Energy Regulator (CER) welcomed the provisions in Schedule 4
of the Bill which seek to add the CER as a designated agency under the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006. The CER stated that
this amendment will enable AUSTRAC to share financial intelligence information
with the CER, assisting the CER in ensuring that the regulatory schemes it
administers remain free from criminal influence and exploitation.
The committee is satisfied that the amendments in Schedule 3 of the Bill
contain sensible amendments to improve the current processes around
age determination, and the efficiency and effectiveness of people smuggling
investigations and prosecutions.
Age determination matters
The committee welcomes amendments to the Crimes Act to facilitate
removing wrist x-rays as a prescribed procedure for age determination. Removing
wrist x-rays as a prescribed procedure is supported by the weight of expert
medical opinion, the Office of the Chief Scientist, and previous
recommendations of the Senate Legal and Constitutional Affairs References
Committee and the Australian Human Rights Commission. Further, the committee
has heard that this procedure has not been utilised by the Australian Federal Police
since August 2011. The committee notes that consequential amendments to the
Crimes Regulations will be necessary to fully implement this decision, and
considers that these amendments should be brought forward as soon as practicable.
The committee also welcomes the introduction of proposed new
section 236D of the Migration Act, to clarify that the prosecution bears
the onus of proof in establishing that an alleged people smuggler is 18 years
or older, in cases where age is in dispute. This measure accords with the
current practice of the Commonwealth Director of Public Prosecutions, and has
previously been recommended by this committee and by the Senate Legal and
Constitutional Affairs References Committee.
Further amendments to the Migration
The amendments to the Migration Act to allow for the use of evidentiary
certificates in people smuggling will help expedite the process of finalising
people smuggling investigations and prosecutions. The committee considers that
streamlining the process of establishing the facts in people smuggling cases is
in the interests of Australia's Navy and Border Protection Command personnel,
as it will allow them to focus their time on operational matters rather than
the administrative processes associated with providing evidence in people
smuggling prosecutions. The use of evidentiary certificates will lessen the
time taken to complete people smuggling prosecutions, facilitating the speedy
administration of justice in these cases.
The committee also supports amendments to clarify that time spent in
immigration detention can be taken into account by a court when sentencing in
people smuggling cases. This is already the practice of some courts, and this
amendment will bring consistency to the treatment of this issue across all
state and territory jurisdictions.
Other schedules in the Bill
The committee notes the support in submissions for other aspects of the
Bill, particularly the introduction of protections for vulnerable witnesses in
slavery, slavery‑like and human trafficking cases in Schedule 2 of the
Bill. The committee commends these measures, which will make it easier for the
victims of these serious offences to access redress through the courts.
The committee recommends that the Senate pass the Bill.
Senator Trish Crossin
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