CHAPTER 4
Options for assisting affected individuals
4.1
Paragraph (f) of the committee's terms of reference relates to options
for reparation and repatriation of any minor who has been charged (contrary to
current government policy) and convicted. This chapter outlines the legal
options for releasing Indonesian minors who have been wrongly imprisoned or
detained in Australia, the current process of repatriation for boat crew returned
to Indonesia, and the options proposed by submitters and witnesses for
compensating affected individuals.
Options for the early release and repatriation of convicted prisoners
4.2
The Attorney-General's Department (AGD) and the Australian Federal Police (AFP)
informed the committee that there are several legal options for facilitating
the release of imprisoned persons who have been convicted as adults on people
smuggling charges but later found to be minors. These options are:
- the prisoner lodging an appeal in the relevant state or territory
court of criminal appeal;
-
the relevant state or territory Attorney-General referring a case
to the court of appeal to be heard again;
- the federal Attorney-General granting a licence for the offender
to be released from prison where exceptional circumstances exist (under the
powers of subsection 19AP(1) of the Crimes Act 1914); or
- the Governor-General, on the advice of the Australian Government,
exercising the Royal Prerogative of Mercy to grant a pardon to a federal
offender.[1]
4.3
As noted previously,[2]
15 individuals have been released from prison on licence granted by the
Attorney-General, as a result of the recent AGD review of 28 cases in
which individuals who claimed to be minors had been convicted of people
smuggling offences.
Processes for returning individuals
to Indonesia
4.4
Upon an Indonesian prisoner's release from prison, they are returned to
their home country by the Department of Immigration and Citizenship (DIAC),
unless they make a claim for protection to remain in Australia.[3]
DIAC informed the committee that, prior to removal from Australia, family
tracing and contact with the individual's parents or guardian to confirm
reception arrangements is conducted, either by DIAC itself with the client,
through the International Organization for Migration (IOM), or through the
Indonesian consulate.[4]
4.5
DIAC advised that minors returned to Indonesia are accompanied
throughout the journey, from departure to reunion with their parent or
guardian:
A DIAC officer accompanies the minor to Indonesia. In
circumstances where a parent(s) or guardians are unable to meet the client at
the airport, DIAC arranges for IOM to accompany the minor to their home and to
ensure that the minor is reunited with their parents or guardian.[5]
4.6
DIAC also observed that post-arrival care arrangements including
reception, transport and escort services are organised and funded by DIAC
through the services of IOM.[6]
4.7
With regards to the removal of individuals from Australia, Australian
Lawyers for Human Rights (ALHR) suggested that repatriation arrangements should
include engagement with Indonesian authorities to return children directly to
their villages and families, and that children should ideally be accompanied by
a guardian fluent in the relevant language or dialect.[7]
Options for providing support to wrongly detained minors
4.8
As described in chapter 2, Australia is subject to obligations under the
UN Convention on the Rights of the Child (CRC) in its dealings with minors
detained in Australia. The Migrant and Refugee Rights Project observed that the
UN Committee on the Rights of the Child has commented:
- that, for rights to have meaning, effective remedies must be made
available to redress violations; and
- where rights are found to have been breached, there should be
appropriate reparation, including compensation and, where needed, measures to
promote physical and psychological recovery, rehabilitation and reintegration.[8]
4.9
Ms Bassina Farbenblum from the Migrant and Refugee Rights Project also
remarked that, under the International Covenant on Civil and Political Rights
(ICCPR), Australia has a 'specific obligation to ensure that anyone who has
been the victim of arbitrary detention has an enforceable right to
compensation'.[9]
4.10
The Migrant and Refugee Rights Project, along with other submitters and
witnesses, expressed the view that Indonesian minors who have been detained in
Australia have been the subject of human rights breaches under the CRC and, as
such, should be entitled to effective reparation for those breaches.[10]
Ms Farbenblum explained further:
I think there is no question in these cases that there are
multiple violations beginning with arbitrary detention but also, in the case of
children, relating to their detention in adult facilities and the fact that
obviously the decisions all the entire way along as to their detention,
prosecution and conviction were not made in their best interests...Obviously, in
the case of children the harm suffered by prolonged detention in adult
facilities in a foreign country—and of course in the case of abuse—would be
especially egregious.[11]
4.11
The Migrant and Refugee Rights Project argued that Australia should
'establish an appropriate administrative mechanism with judicial review, for
determining claims for reparations for rights violations associated with the
detention and prosecution of children for people smuggling offences';[12]
and should ensure that claimants have the necessary assistance to effectively
use these procedures, even if they have already returned to Indonesia.[13]
Compensation
4.12
Several submitters argued that minors who are wrongly detained may be
entitled to compensation. For example, National Legal Aid argued that, where a
minor has been held with adult detainees, the minor should be assisted with
repatriation and provided with an ex-gratia payment:[14]
...these people were minors who did spend a significant amount
of time in detention, in some cases quite unjustly, and in some cases they
spent time in adult detention as well. In those circumstances, it is the view
of National Legal Aid that some form of ex gratia payment may be appropriate.
Obviously some sort of process would need to be set up to assess that, but it
would not be inappropriate to consider that sort of payment, given the
experience of some of these minors who were held in detention for long periods
of time.[15]
4.13
ALHR contended that children detained in adult facilities should be entitled
to monetary compensation. ALHR also argued that, in some cases, the detention
of minors may have been the result of negligence on the part of the government,
and as such may amount to a breach of the government's duty of care towards
detainees, necessitating compensation which takes this negligence into account.[16]
4.14
The Australian Lawyers Alliance (ALA) outlined several possible
mechanisms through which the right to compensation could be pursued, namely:
- automatic granting of rights for compensation for minors charged
with people smuggling;
- the creation of a statutory compensation fund for Commonwealth
breach of guardianship;
- strengthening the powers of the Australian Human Rights
Commission;
- developing federal human rights legislation, and rights to
redress under such legislation;
-
the right of individuals to sue for unlawful imprisonment or for
breaches of the Commonwealth's duty of care; and
- redress under relevant state-based Civil Liability Acts.[17]
4.15
Submitters also raised the issue of compensation for the families of
minors who have been incorrectly detained or imprisoned. The Indonesia
Institute argued that financial compensation should be made available to the
families of jailed minors in order to allow their families to rebuild their
lives and to recover from the trauma of having a child 'locked-up' for up to
five years.[18]
Mr Ross Taylor from the Indonesia Institute suggested:
For those children who have been sent home...we believe it
would be a very good act for the Australian government to acknowledge the
mistakes that have been made; facilitate some financial payments progressively
to these children to allow them to complete their education and seek full-time
work; and to provide some security for their family. In Australian dollar
terms, that is not big money and we believe that would be a good, proper and
correct thing to do.[19]
4.16
AGD and the AFP noted that individual claims for compensation from
wrongly detained or imprisoned minors might be made in the future:
People are free to make claims at any time against any
government if they believe that a government has acted wrongly. Claims for
reparation are regularly made against all governments. Governments have a duty
to properly consider such claims, as well as to properly defend themselves if
such claims have no basis.
If claims for reparations are made by crew convicted of
people smuggling offences, who are subsequently released on the basis that they
may have been a minor at the time of the offence, the Government will consider
the merits of those claims on a case-by case basis.[20]
4.17
It has been recently reported that a civil compensation suit against the
Australian Government has been launched in relation to the cases of two young
Indonesian boat crew detained in Australia during 2011.[21]
The two individuals were reportedly detained for a total of 10 months,
including six months in an adult prison in NSW, before being returned to
Indonesia due to concerns regarding their age.
A public apology
4.18
Some submitters and witnesses argued that the Australian Government should
publicly apologise to individuals who have been detained or imprisoned in
Australia, only to have been later released and repatriated to Indonesia due to
concerns they may have been minors at the time of offending.
4.19
Ms Edwina Lloyd asserted her view to the committee that 'a public
apology by the government should be offered to those persons who have later
been determined to be children'.[22]
Mr Mark Plunkett agreed:
The parliament in 2009 apologised for the treatment of
children who were abused between the 1920s and 1970s and made a solemn pledge
never to allow child abuse to go unchecked, but in a few years the agencies of
the Commonwealth were engaging in a mass, almost industrial sized perpetration
of abuse against these vulnerable Indonesian children. The shameful stain on
Australia's reputation will not be cleansed until Australia makes a similar
apology to these children, to their parents and to Indonesia.[23]
Additional support for individuals
returned to Indonesia
4.20
The issue of additional psychological or other support for wrongly
detained minors who have been returned to Indonesia was also presented in
evidence. ALHR contended that children detained in adult facilities should be
entitled to compensation which adequately takes into account the nature of any
psychological trauma suffered as a result of this detention.[24]
4.21
Ms Farbenblum from the Migrant and Refugee Rights Project was supportive
of the idea of providing support to help such individuals recover from
psychological trauma, but noted that any support 'would have to happen in
Indonesia in a culturally appropriate context', and that the nature and
delivery of support services 'would be best determined in consultation with
experts in Indonesia'.[25]
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