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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