CHAPTER 3


CHAPTER 3

Issues relating to age determination

3.1        The central issue in people smuggling cases involving Indonesian crew who claim to be minors is establishing whether the individual is, in fact, a juvenile at the time the alleged offence occurred. This chapter discusses:

  • the age assessment procedures and evidence used regarding age in people smuggling cases in Australia;
  • the role of age determination hearings in Australian courts; and
  • agency processes for dealing with information relating to the age of suspects.

Age assessment procedures

3.2        Paragraph (b) of the committee's terms of reference relates to what information the Australian authorities possessed or had knowledge of when making a determination that a suspect or convicted person was a minor. In this context, a number of submitters commented on the various processes and information used in making age assessments for alleged people smugglers who claim to be minors, and the types of tests and information available to authorities: namely, the use of wrist x-rays; dental x-rays; focussed interviews conducted by the Department of Immigration and Citizenship (DIAC); and additional documentation or information collected from Indonesia.

3.3        The submission from the Attorney-General's Department (AGD) and the Australian Federal Police (AFP) (AGD/AFP submission) commented on the difficulties associated with making age assessments:

Establishing age is an extremely complex undertaking. Most people smuggling crew from Indonesia are unable to prove their true age and are often unaware of their date of birth, and their families may similarly be unaware of their actual age or date of birth. All age determination techniques carry inherent limitations. Medical procedures to establish age have a margin of error, and interviews and statements from relatives rely on truthfulness and memory. Further, Indonesian identity documents may be produced without any formal verification of identity, including on the basis of oral statements by relatives, and in some cases many years after the person was born. Obtaining formal identity documents from Indonesia can also take several months, particularly where documents are often held in remote and decentralised locations.[1]

3.4        The submission also highlighted the distinction between 'age assessment' and 'age determination'. It noted that 'age assessments' are the processes undertaken by relevant agencies in order to decide whether individuals should be treated as adults during relevant immigration and detention processes, and are not conclusive; whereas 'age determinations' are the final decisions made by courts regarding the likely age of an individual, and are decisive as to how that individual is to be treated in the Australian legal system.[2]

Wrist x-rays

3.5        The use of wrist x-rays in age assessments has been examined at length in recent Senate committee inquiries.[3] Submitters and witnesses to this inquiry raised many of the same concerns previously canvassed relating to wrist x-rays, namely:

  • the accuracy of wrist x-rays as an age assessment tool has been discredited;
  • 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 outdated and not suited to individuals of Indonesian ethnicity; and
  • the use of x-rays for non-medical purposes raises serious ethical concerns.[4]

3.6        Citing these issues, numerous stakeholders argued that the use of wrist x‑rays should be discontinued as an age assessment tool.[5] The International Commission of Jurists Australia (ICJA) summarised this argument as follows:

...supplementing wrist x-rays with other methods of assessment is not an effective solution. The ICJA submits that the practical and legal difficulties of wrist x-rays...should lead to their outright rejection as a method of age assessment. The ICJA recommends that the use of x-rays to determine age should be wholly rejected by the Australian Government.[6]

3.7        The recent Australian Human Rights Commission report found that 'wrist x‑ray analysis is not informative of whether an individual is over 18 years of age',[7] and 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.[8]

3.8        AGD informed the committee that, while wrist x-rays are still the prescribed procedure for age determination in the Crimes Regulations 1990, it is currently consulting with the Office of the Chief Scientist on the scientific issues raised in relation to the use of wrist x-rays. The AGD/AFP submission also observed that wrist x-rays have been used in some cases as evidence that a suspect is a juvenile, with 37 boat crew members being removed from Australia since September 2008 because a wrist x-ray indicated the person was likely to have been a minor at the time of the offence.[9] An AGD officer told the committee that the use of wrist x-rays has declined significantly in recent times:

Only one wrist x-ray has been carried out since 2011 and that was at the request of defence counsel...While wrist x-rays are not routinely being used by the AFP and the CDPP, they remain available upon request, as stated earlier, from the suspect or defendant.[10]

3.9        The Commonwealth Director of Public Prosecutions, Mr Chris Craigie SC, informed the committee that the CDPP has decided not to rely on wrist x-ray evidence in age determination cases, meaning that the CDPP will not be placing wrist x-ray evidence before the courts at all.[11] Mr Craigie explained the rationale for this decision:

Our decision in regard to wrist X-rays has come out of the process that often takes place where a series of cases are analysed and the outcome of the analysis of that process is one comes to the conclusion that it would be preferable not to rely upon a certain class of evidence...We had a series of cases late last year where we had concerns that another trend of opinion was developing in the judiciary, and on that basis we have ceased relying upon that evidence.[12]

3.10      Mr Craigie stated, however, that he believed wrist x-rays may still have some utility as a tool to show that an individual is not an adult:

My instruction to my people...is that, if a defendant undergoes an X-ray and it indicates that the wrist is not fully fused, the test has a utility in that sense to exclude that person...Whatever difficulties there may be about it as an inclusionary test, it retains value in that, if I see someone's wrist is not fused, it excludes them.[13]

Dental x-rays

3.11      Dental x-rays are one of the additional procedures included in the government's expanded suite of possible age assessment techniques since July 2011. The procedure involves the radiographic analysis of developing and developed teeth, obtained using an external x-ray around the jaw. The x-ray is then compared with a reference database and an estimate of the subject's age is made, generally based upon the stage of development of the individual's third molars (wisdom teeth).[14] To date, dental x-rays have not been used in age assessments for suspected people smugglers in Australia.[15]

3.12      The Australian Society of Forensic Odontology urged that legislative changes should be made to facilitate the use of dental x-rays as a procedure for age determination,[16] because dental x-rays provide a credible age assessment tool:

Studies have found that analysis of third molar development is accurate and sufficiently correlated with chronological age to be of forensic value...It is recognised that dental development, as opposed to skeletal development, is able to provide the most reliable indicator for chronological age.[17]

3.13      In their submission, however, Professor Sir Albert Aynsley-Green Kt and a number of other experts in the field noted that there is uncertainty concerning the accuracy of dental x-ray techniques in assessing age:

There is...considerable controversy amongst dental experts on the reliability and validity of the different methods for assessing dental maturity. The wide range of variability in the timing of dental development, the need or otherwise to take ethnic differences into account, and the applicability of population standards to the assessment of the individual in the border setting create real challenges for those trying to define best practice.[18]

Focussed interview techniques

3.14      DIAC told the committee that its initial assessment of the age of suspected minors upon arrival at Christmas Island is based on any documentary evidence available at the time, as well as a focussed age assessment interview undertaken by two experienced DIAC officers.[19] DIAC officials outlined the interview process at a 2012 Senate budget estimates hearing:

We have a detailed interview technique that works on the basis of taking [the interviewee] through a series of questions exploring schooling, the age of siblings, the date of birth and when events occurred. We track through the history in a chronological way through their life...We are not about determining an exact age; we are more about determining if someone is clearly over 18 or clearly under 18.[20]

3.15      DIAC noted that the two officers who undertake the interview each separately form their own view about the age of the interviewee, and only share that view towards the end of the process. In cases where the two officers disagree about whether the individual is an adult, the individual is given the benefit of the doubt and continues to be treated as a minor.[21] In addition, the interviews are conducted with the assistance of an interpreter and in the presence of an independent observer from Life Without Barriers, a service provider whose role is to represent the interests of the client.[22]

3.16      The interview-based assessment approach was introduced and piloted in the second half of 2010, and was subsequently introduced as the standard approach for new boat crew arrivals.[23] Prior to December 2011, however, DIAC's interview assessment was not determinative in deciding whether crew should be returned to Indonesia in the first instance, with the AFP and AGD using information provided by DIAC in its consideration of the age of alleged people smugglers.

3.17      Several submitters commented on the accuracy of age assessment interviews. For example, in a submission Professor Sir Aynsley-Green Kt (and others) observed that numerous factors affect the value of narrative-based interviews in making age assessments:

An individual's narrative about his or her experiences can be important in assessing age, but a properly conducted analysis demands time, often involving several separate interviews, together with effective training and expertise in the country from which [the] person originates. It is important that the interviewer comes away from the interview with a proper understanding of the individual's life, education and cultural background and experiences to date. An intimidating environment, the rigour of the process and the attitudes of staff conducting the interviews may compromise the potential value of an interview in establishing an individual's age.[24]

3.18      The ICJA observed that information gathered in narrative interviews may vary widely, and that a 'narrative that is short and concise with little factual content may be relied on to assess age just as conclusively as a narrative that contains a large amount of information may'. The ICJA also noted that language barriers can hinder the value of information provided in interviews, even when interpreters are provided, and that age determination made on the basis of interviews can rely on a high degree of subjectivity.[25]

3.19      At a 2012 Senate budget estimates hearing, DIAC officers noted that their interview assessment process is still relatively new, and that there has not yet been sufficient time to gather data to determine the accuracy of assessments made using the interview process.[26]

AFP interviews

3.20      The AFP advised that it offers individuals suspected of people smuggling offences an interview with AFP officers, including asking questions about age in cases where age is in dispute. The AFP noted that, in accordance with the requirements of Part IC (Investigation of Commonwealth Offences) of the Crimes Act, participation in an interview with the AFP is voluntary, and that typically crew members decline to be interviewed.[27]

Use of documentation from Indonesia

3.21      Many submitters and witnesses discussed the use of documentary evidence from Indonesia in people smuggling cases where age is unclear. The AFP informed the committee that credible documentary evidence is not always available to support the claims of people smuggling crew who claim to be minors, and that the AFP endeavours to verify information from Indonesia wherever possible.[28] The CDPP added that, in prosecuting people smuggling cases, it has been presented with a broad range of documentary evidence from Indonesia from both the AFP and defence lawyers for accused people smugglers who claim to be minors. The types of documents it has received are:

  • birth certificates, retrieved from the local area of the defendant by the Indonesia National Police (INP);
  • affidavits, usually provided from parents, siblings, other family members or friends;
  • school records, provided to the AFP by the INP;
  • citizenship or identity records; and
  • other documentation such as baptismal certificates.[29]

3.22      The CDPP stated that a 'range of issues concerning admissibility, reliability and provenance have become apparent to the CDPP in relation to the use of these types of documentary material in the criminal justice system'.[30]

Reliability of documentary evidence from Indonesia

3.23      The issue of the reliability of documentary evidence from Indonesia was raised in the AGD/AFP submission. The submission asserted that:

  • it is common for Indonesians to obtain multiple identity documents without any requirement for verification or sighting by a government official;
  • identity documents may be produced on the basis of oral information, without formal verification, in some cases years after the person's birth;
  • there is a prevalence of illicit production of fake identity documents in Indonesia; and
  • many people in rural Indonesian communities do not keep formal records of birth, and may adopt nominal birthdays for convenience that have little or no connection to their true age.[31]

3.24      At the public hearing on 24 August 2012, a representative from the AFP informed the committee:

Given that in parts of Indonesia maturity to work is of far greater importance than biological age, it has been the AFP's experience that official Indonesian documentation does not necessarily provide reliable evidence of a person's age, if it actually exists. For this reason the AFP has not always relied upon Indonesian documentation. It should in no way be inferred from this that Indonesian crew or authorities have always intentionally misled investigators. In fact, it is quite logical that many of the crew do not know their own date of birth or age.[32]

3.25      Mr Simon Lee, a barrister familiar with people smuggling cases, stated that, in many cases, Indonesian boat crew will only know their chronological age by reference to a major event, a volcanic eruption or similar significant historical event.[33] The Migration Institute of Australia noted that individuals who register their birth years after the fact may be given birth dates which are different by up to 18 months from their true birth date.[34]

3.26      The AFP and AGD advised that any documents provided which suggest that an accused people smuggler may be a minor are considered in assessing whether to give that individual the benefit of the doubt.[35]

Difficulties obtaining documentation from Indonesia

3.27      The AFP informed the committee that it has actively sought documents from the Indonesia National Police (INP) on a police-to-police basis for people smuggling cases where age is in dispute, and that it has also recently commenced requesting documents from Indonesian consular officials in Australia.[36] An AFP representative advised that, while the AFP regularly requests information from the INP, this does not occur in every people smuggling investigation:

[We would] not [contact the INP] in every case. It would depend on the circumstances and what other material we might have available. We may have other material available that leads us to believe that it is not a true claim or that it is a misleading claim. But if we are uncertain, or if we wish to make that inquiry to try and establish age where we are not certain of age, then we would go to the Indonesian National Police to do that.[37]

3.28      Ms Sarah Westwood from Victoria Legal Aid acknowledged that it can be difficult for authorities in Australia to obtain relevant documentation from Indonesia:

...in our [practical] experience, the work of trying to obtain documentary evidence in admissible form about the question of age on behalf of our clients was a very difficult thing to do. We have no doubt that the Australian Federal Police also encountered great difficulties in obtaining information from Indonesia...We acknowledge the difficulty; we encountered the difficulty ourselves in trying to obtain evidence...There were significant delays, we know, in Indonesian authorities responding to requests for information about age from Australian authorities. Again, defence lawyers encountered exactly the same difficulties in trying to obtain, from Australia, that information out of Indonesia.[38]

3.29      An AFP representative also noted that the INP face significant challenges in attempting to verify an individual's age, and that due to the variability in record‑keeping across the Indonesian archipelago, the INP does not generally have a standard practice for determining an individual's age.[39]

3.30      The ICJA argued that, despite the difficulties associated with obtaining documentary evidence, it is the most preferable method of age determination and, where relevant documentary evidence is produced and verified, it should be regarded as highly determinative of age.[40]

Admissibility of documentary evidence in Australian courts

3.31      Without evidence supporting the authenticity of documents procured overseas, documents may not be admissible as evidence in an Australian court of law, except in prescribed circumstances. While the AFP can obtain documents from the INP on a police-to-police basis, in order for documents to be automatically admissible in an Australian court, a formal mutual assistance request to the Indonesian Government is required. Such a process is significantly more time consuming and can take up to several months.[41]

3.32      Ms Edwina Lloyd stated that, in the case of one young Indonesian client she represented, birth documentation was challenged by the Commonwealth prosecutor and was not admitted in court. Ms Lloyd commented that Australian courts need to be more flexible in recognising documentation from Indonesia:

...it is a ridiculous expectation of an Australian court that they see documentary evidence as the highest [standard] and what would be seen as credible; and evidence coming from Indonesia is seen as not credible at all. The courts need to be a little more understanding that the type of evidence that can be produced from Indonesia from these remote and impoverished villages is going to be different and that should be accepted.[42]

3.33      A witness from Victoria Legal Aid agreed, stating that there 'has to be...a degree of flexibility in the kinds of evidence that can be used and that should be admissible in these cases'.[43]

3.34      The CDPP noted that it has now adopted a general policy of not disputing the admissibility of evidence provided by the defence in age determination hearings:

In mid 2011, the CDPP recognised the need for a court to have all documentary material before it in determining age, rather than just that material which was admissible. The CDPP's position became that the CDPP will not dispute the admissibility of any documentary evidence that the defendant wishes to tender, however it may be appropriate for comment to be made about the weight if any which a Court may wish to give to any evidence.[44]

3.35      Mr Craigie SC informed the committee that, as well as allowing defendants to tender documentary evidence in court that may not otherwise be admissible, the CDPP recognises such material when considering whether to discontinue a prosecution:

In many, many cases, including cases where inquiries have been initiated in Indonesia and they are simply, given the nature of things, going to take too long the solution is that a very large number of matters are discontinued on material that, in many instances, would not be admitted in a court even if we wanted to thrust it before the court. Some of that material might or might not be of great weight. So, to that extent, the bar has been lowered but lowered in an administrative setting where we come to a view that in order to make the process work in a timely fashion we have to be a lot more flexible about the line between material that we see is sufficient to terminate proceedings and evidence that would sustain examination in a court. [45]

3.36      Mr Allan Sharp, a Deputy Director in the CDPP, also noted that different judges may take different views about whether or not they will consider material relating to a suspect's age that would not normally be admissible under rules of evidence:

Judicial officers are notoriously careful about the evidence they get. In fact, we have a mixed number of cases which we have prosecuted where evidence of an accused's statement as to his age were proffered to the courts. In some cases judicial officers have ruled that this was pure hearsay and would not accept it; in other cases judges said: 'It is hearsay. I will accept it for limited purposes'.[46]

3.37      The CDPP noted that the length of time taken to obtain relevant documents from Indonesia can cause unacceptable delays in the prosecution process:

The CDPP is conscious of the length of time that it can take for the AFP to make inquiries and obtain documentation from Indonesia. Where material has not been available within a reasonable timeframe, the CDPP has considered whether to continue the prosecution without the benefit of that material. This has led to matters being discontinued where material was later obtained from Indonesia which supported the person being an adult.[47]

3.38      The Queensland Law Society argued that the sometimes lengthy time periods taken to verify documents presented by defence lawyers are unjustified, and that documents provided by legal professionals should be accepted at face value:

Solicitors are officers of the court. As such, they must accord with strict professional and ethical standards to gain entry and maintain employment in the legal profession. We consider that these strict ethical duties impose a sufficient standard to ensure that legal practitioners do not engage in unprofessional conduct, such as provision of false documentation.[48]

Ability of individuals to collect evidence from Indonesia

3.39      Several submitters raised cases where legal representatives or journalists travelled to Indonesia to obtain documentation or affidavit evidence regarding the age of an accused people smuggler. Mr Simon Lee cited four cases where solicitors had travelled to Indonesia to gather admissible evidence, which resulted in the prosecutions being discontinued in all four cases, and the individuals repatriated. Regarding the case of Dion Domum, Mr Lee stated:

His mother, at the request of his lawyers, provided an affidavit stating her son was 15 years old. He had been in detention for eight months until his release in November 2011. No attempt by the Australian prosecuting authorities was made to contact his parents to confirm his age. It was not until his lawyer travelled to the island of Rote to obtain evidence to confirm his age that Dion Domun was released.[49]

3.40      Similarly, Ms Edwina Lloyd outlined a case where a client was held in detention and then imprisoned in an adult maximum security prison from February 2010 to October 2011, while the AFP investigation and subsequent prosecution proceeded. At this time, Ms Lloyd flew to Indonesia and obtained affidavit evidence from the individual's family, leading to the CDPP discontinuing the prosecution within a month of this evidence being presented.[50] Ms Lloyd asserted that the Australian authorities made no attempt to verify the individual's claims that he was a minor or contact his family members prior to her travelling to Indonesia.[51]

3.41      Mr Mark Plunkett also raised the case of three Indonesians accused of people smuggling offences whom he represented, in which the individuals were detained in Australian immigration facilities and prison for 417 days, before being released within two weeks of Mr Plunkett obtaining affidavit evidence from Indonesia.[52] Mr Plunkett commented:

We were able to obtain access to Indonesia within a week and return to Australia and retain all the evidence we needed. We videoed it, we filmed it and we had a member of the international press present—distinguished journalist Mr Lindsay Murdoch. We dealt with witnesses one by one, following all the ethical requirements of taking evidence from witnesses. We did it in the back of a church with the village looking on. That evidence satisfied the authorities and the charges were dropped. That simple exercise that Margaret Bocquet, Tony Sheldon and I completed in a matter of days could have been done by the Commonwealth at least a year earlier. And none of these children would have suffered by being locked up in adult jails.[53]

3.42      Mr Simon Lee argued that the onus should be on the prosecution to prove the defendant's age using 'safe, accurate and reliable methods' including gathering relevant material from Indonesia.[54] National Legal Aid agreed that the primary obligation should be upon the AFP to conduct a full investigation and provide any relevant documentation to the defence as it comes to hand.[55] The AFP explained, however, that its officers cannot undertake investigations in Indonesia without the official cooperation of the INP:

Commentary in the media has suggested that the AFP should undertake age inquiries in Indonesia independently of the INP. However, while journalists and other individuals may travel to Indonesia to source documents in relatively short timeframes, AFP officers cannot similarly travel to Indonesia in their private capacity.

Indonesia is a sovereign nation and the AFP cannot conduct investigations without the cooperation of the Indonesian Government. Similarly, Australia would not permit INP officers to conduct investigations in Australia without the cooperation of the AFP. In the absence of an agreement with Indonesia, and legislation enabling the AFP to exercise police powers in a foreign country, there is no lawful basis for the AFP to obtain documentary evidence other than through formal channels.[56]

Multidisciplinary approaches to age assessment

3.43      According to AGD and the AFP, the primary challenge associated with age determination is that there is no one method available to categorically establish age, and all the techniques utilised have inherent limitations.[57] For this reason, some submitters suggested that multidisciplinary approaches to age assessment incorporating a variety of techniques are likely to be more accurate than processes which rely on a single method for age assessment.[58]

3.44      The recent Australian Human Rights Commission report was more cautious regarding the utility of multidisciplinary approaches:

...there is no evidence that a multi-disciplinary approach to age assessment is more accurate than medical or non-medical approaches alone; consequently, if a multi-disciplinary approach is used, a wide margin of benefit of the doubt should be afforded to individuals whose age is being assessed.[59]

3.45      The AGD/AFP submission noted that the Australian Government's overall philosophy concerning age assessment is based on a holistic approach and the benefit of the doubt principle:

Age determination is an inexact science involving some margin of error irrespective of the method used. Recognising these limitations, the Government considers the best approach is to adopt a combination of age determination procedures and to give defendants the benefit of the doubt. This ensures that people smuggling crew are only treated as adults where they are assessed on the available evidence to be an adult. It also means the court will have the widest range of evidence to assess in making an age determination.[60]

Age determination hearings

3.46      Paragraph (c) of the committee's terms of reference refers to whether there have been cases where information that a person is a minor was not put before the court. Submitters raised several cases in which this has occurred, and also discussed broader issues relating to age determination hearings, in particular the burden and standard of proof used in these proceedings.

Information regarding age of accused which was not raised in court

3.47      The AGD/AFP submission reported that there have been cases where information that appeared to suggest a defendant was a minor was not put before the court, because it lacked probative value.[61] The submission raised the case of Ali Jasmin, where an extract of a birth certificate indicating Mr Jasmin was a minor was received from the Indonesian consulate several months after he was charged:

While the authenticity of the record was not in question, the accuracy of the information contained in the document was uncertain given the time between the alleged date of birth and the date of the record. Mr Jasmin's lawyer has publicly acknowledged that this was the case. The CDPP was aware the defendant had a copy of the document on 24 August 2010, and provided a translation when it was available. Given the concerns about the veracity of the information contained in the document, the prosecution did not put the document before the court. It is understood the defence also did not put the document before the court on similar grounds.[62]

3.48      The AGD/AFP submission also stated that information relating to the age of defendants gathered by DIAC as part of the initial assessment interview process may not be admissible as evidence in an age determination hearing before a court, even if it establishes important details about a person's age.[63]

3.49      The CDPP informed the committee that, in addition to the case of Ali Jasmin, it was aware of three other cases in which information relating to the age of the accused was not presented during court hearings. The CDPP noted that these involved cases where:

  • the prosecution was in possession of documents which supported the defendant being 18 years or over but did not rely on them because of issues with the documents such as issues of admissibility or identification;
  • documentation from Indonesia which indicated that the defendant is an adult was not put before the court because the defence accepted that the defendant was an adult; and
  • documentation from Indonesia was not provided to the court because it was not available until after the age determination hearing.[64]

3.50      Australian Lawyers for Human Rights (ALHR) asserted that, based on current practices, it would be difficult to determine the number of cases in which information that a person was a minor was not put before the court. It argued that, given the language, cultural, evidentiary and procedural barriers in such cases, it is highly likely that miscarriages of justice have occurred more frequently than they are likely to be detected and rectified.[65]

Burden and standard of proof in age determination hearings

3.51      Submitters noted that the Migration Act 1958 (Migration Act) is not clear regarding whether the prosecution or defence bears the onus of proof regarding the age of accused people smugglers in age determination hearings.[66] The Victorian Equal Opportunity and Human Rights Commission argued that 'where a person raises the issue of age during criminal proceedings, the prosecution should bear the burden of proof to establish that the person was an adult at the time of the offence'.[67]

3.52      The AGD/AFP submission noted that the government is considering possible amendments to the Migration Act to expressly provide that the prosecution bears the legal burden to establish on the balance of probabilities that the defendant was an adult at the time the offence was committed.[68]

3.53      In evidence to the committee, Mr Craigie SC confirmed that the CDPP has taken the view that it should bear the burden of proof in determining a suspect to be an adult, and considered that the codification of this arrangement in legislation would be a 'comfortable step'.[69]

3.54      The standard of proof used in age determination hearings was also queried. ALHR argued that, given the seriousness of the consequences associated with the outcome of court-determined age in criminal cases involving accused people smugglers, the civil standard of proof of 'on the balance of probabilities' is inappropriate for age determination hearings. ALHR submitted that the criminal standard of proof of 'beyond reasonable doubt' should be adopted for age determination hearings in these cases.[70]

Processes for dealing with information regarding the age of suspects

3.55      Paragraph (d) of the committee's terms of reference relates to the types of checks and procedures that exist to ensure that evidence given to an Australian authority or department about the age of a defendant or suspect is followed up appropriately, while paragraph (e) deals with the relevant procedures across agencies relating to cases where there is a suggestion that a minor has been imprisoned in an adult facility.

3.56      Submitters cited cases where relevant information or evidence relating to a suspect's age had not been followed up appropriately. For example, the Australian Lawyers Alliance raised a case in which the CDPP denied knowledge of the receipt of a defendant's family identification card, only to later apologise, acknowledging that they did have the card but that the various authorities had failed to communicate effectively with each other concerning the existence of that document.[71]

3.57      The government agencies that provided submissions to the inquiry emphasised that, in each individual case, the process of age assessment for boat crew who claim to be minors is an ongoing one which incorporates new information or evidence as it comes to hand. It was noted that new evidence or information may be provided at any time by the crew member, their legal representatives or the Indonesian authorities, and that in particular:

  • DIAC encourages individuals to provide verifiable documents about their age, and if persuasive new information is brought to DIAC's attention, it may result in the initial age assessment being altered accordingly;
  • the AFP may decide to give the person the benefit of the doubt at any stage of its investigation process if it uncovers information that suggests the person may be a minor; and
  • the CDPP may discontinue a prosecution if evidence comes to light that a person charged with people smuggling offences may be a minor.[72]

3.58      In addition to any action taken by a Commonwealth agency to review an age assessment, a defendant can dispute their age at any time during the court process, and even after conviction can appeal their conviction and sentence on the basis of age.[73]

3.59      Both the NT and Queensland Governments advised the committee that, if a correctional services employee suspects or discovers that an Indonesian prisoner is a minor, the matter is immediately referred to Australian Government authorities.[74] The NT Government confirmed that this has occurred in the Northern Territory in the past.[75]

Application of the 'benefit of the doubt' principle

3.60      A key concept in dealing with alleged offenders who may be minors is that the benefit of the doubt should be afforded to such individuals, and that they should be treated as children until it is proved that they are adults. As noted in chapter 1, the AHRC report found that 'the Australian Government failed to ensure that the principle of the benefit of the doubt was afforded in all cases where an individual said that he was a child'.[76]

3.61      Commonwealth agencies disagreed with the AHRC's assessment when the issue of the 'benefit of the doubt' principle was raised during this inquiry. AGD and the AFP noted that, in July 2011, the government commenced a policy of proactively giving the benefit of the doubt about age where the available evidence could not clearly establish that the person was a minor.[77] A representative from AGD told the committee:

The department is of the view that all the information available to agencies was considered and that the concept of the benefit of the doubt was given. The department is well aware of its obligations in respect of Rights of the Child and has always intended to act in good faith in that regard.[78]

3.62      Mr Chris Craigie SC advised the committee that the CDPP actively applies the benefit of the doubt principle, stating that 'there are over 60 people who had been given the benefit of the doubt by me without going anywhere near the court', even in cases where wrist x-rays had indicated that the individuals were adults.[79]

3.63      In saying this, however, Mr Allan Sharp from the CDPP commented that an individual claiming to be a certain age does not in itself warrant the benefit of the doubt being given, and that all the evidence must be weighed in such considerations. Regarding the case of Ali Jasmin, where a birth certificate claimed that he was 13 years old but a wrist x-ray assessment indicated that he was over 19 years of age, Mr Sharp observed:

[T]he issue is not whether one simply accepts the documents on the face of it. The process of assessing a benefit of the doubt and, indeed, an age and the probability of the success of a case, is a weighing of all that evidence and material in accordance with the normal standards of how one proceeds in these matters, and that is what part of giving the benefit of the doubt is. I do not think that mere raising of age automatically gives rise to a benefit of the doubt, and that was the position in this case.[80]

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