Chair's further findings and recommendations
1.1
The Chair has carefully considered all the material presented to the
committee and, in addition to the seven recommendations which were agreed to by
the majority of the committee, has identified further recommendations that she
feels best reflect the breadth of the evidence received. The Chair of the
committee believes that the evidence presented to the inquiry makes a
compelling case for further changes to Australia's legislative and
administrative framework for dealing with Indonesian boat crew who claim to be
minors. These additional comments and recommendations should be read in
conjunction with the evidence presented in the majority report.
Indonesian minors detained in Australia
1.2
While the Chair of the committee acknowledges the work of the Attorney‑General's
Department (AGD) in undertaking an initial review of cases where individuals
who may have been minors have been convicted, a more extensive review is
necessary to determine exactly how many cases there have been since 2008 where
a minor has been wrongly detained in Australia. Even in cases where the
individual has now been returned to Indonesia, it is important, both as a
matter of principle and in fairness to any possible future compensation claims,
that the government proceed with a more complete knowledge of how many minors
really were detained. This review could be conducted using the existing case
file information held by relevant Commonwealth agencies, and would not require
calling individuals back to Australia who have now been returned to Indonesia.
Note: the number of cases involving the detention of minors
is discussed in chapter 2 of the majority report at paragraphs 2.2–2.17.
Recommendation 1
1.3
The Chair of the committee recommends that the Attorney-General's
Department undertake a review of all cases since 2008 where Indonesian minors
may have been detained in Australia on suspicion of people smuggling offences,
in order to determine:
- the number of minors who have been inappropriately detained in
Australia; and
- the length of time for which those individuals were detained.
Wrist x-rays
1.4
In the interests of achieving agreement, the Chair has agreed to the
recommendation contained in the majority report of the committee that the
Australian Government consider removing wrist x-rays as a prescribed
procedure for age determination under the Crimes Act 1914 (Crimes Act) and
the Crimes Regulations 1990, pending advice to government from the Office
of the Chief Scientist.
1.5
However, the Chair notes that peak medical organisations including the Royal Australasian
College of Physicians and the Royal Australian and New Zealand College of
Radiologists, as well as other medical experts, are already clearly on the
public record stating their opposition to the use of wrist x-rays as an age
determination procedure.[1]
On this basis, the Chair of the committee considers that sufficient medical and
scientific evidence has already been presented to discredit the use of wrist
x-rays as an age assessment tool such that there are sufficient grounds for the
Australian Government to remove wrist x-rays as a prescribed procedure for
age assessment.
1.6
The Chair further notes that the committee was informed during the
inquiry that some individuals claiming to be minors have requested that wrist
x-rays be conducted to support their claims regarding age; however, these
requests do not necessitate retaining wrist x-rays as a prescribed procedure
under the Crimes Act. Dental x-rays, which are not a prescribed procedure for
age determination under the Crimes Act, are currently offered by the Australian
Federal Police (AFP) to individuals on a voluntary basis. Hence, if wrist
x-rays were removed as a prescribed procedure from the Crimes Act, there would
be nothing to prevent wrist x‑rays being offered on a voluntary basis, or
when specifically requested by an individual, in cases where age is in dispute.
Note: evidence regarding the use of wrist x-rays is
discussed in chapter 3 of the majority report at paragraphs 3.5–3.10.
Obtaining evidence from Indonesia
1.7
The majority report recommended that the Australian Government formalise
arrangements with the Indonesian Government to expedite the process of
gathering age-related evidence in Indonesia for individuals detained in
Australia on suspicion of people smuggling offences. Additionally, the Chair of
the committee considers that the activities of legal aid representatives in
obtaining evidence from Indonesia should be more formally acknowledged and supported.
Given that the activities of these legal aid representatives have been helpful
in advancing many cases in a timely manner, Australia's eight legal aid
commissions should continue to be resourced sufficiently to allow legal aid
lawyers to obtain evidence directly from Indonesia where necessary.
Note: The ability of lawyers and other individuals to obtain
evidence from Indonesia is discussed in chapter 3 of the majority report at
paragraphs 3.39–3.42.
Recommendation 2
1.8
The Chair of the committee recommends that the Australian Government,
in conjunction with state and territory governments, sufficiently resource
Australia's eight legal aid commissions to enable legal aid lawyers
representing suspected people smugglers who claim to be minors to travel to
Indonesia to obtain relevant evidence relating to the age of their clients.
Guardianship issues relating to crew who claim to be minors
1.9
The Chair of the committee considers that an independent statutory
guardian should be appointed for all people smuggling suspects who claim to be
minors. While the independent service provider engaged by the Department
of Immigration and Citizenship (DIAC) provides some support to individuals who
may be minors, it has no ultimate legal or guardianship responsibility for
these persons. For this reason, a codified guardianship arrangement is
necessary to ensure that suspects who may be minors are provided with
appropriate support and case management. The establishment of a statutory
guardian was supported by numerous submitters to this inquiry,[2]
and is consistent with Recommendation 2 of the Australian Human Rights Commission's
(AHRC) recent report, which states:
An individual suspected of people smuggling who says that he
is a child, and who is not manifestly an adult, should be provided with an
independent guardian with responsibility for advocating for the protection of
his best interests.[3]
Recommendation 3
1.10
The Chair of the committee recommends that the Australian Government
introduce legislation to appoint an independent legal guardian for individuals
suspected of people smuggling offences who claim to be minors, to represent
their best interests while their age claims are assessed.
Access to legal aid and other services
1.11
As agreed in the majority report, legal assistance should be provided in
person to a crew member who claims to be a minor as soon as possible after such
an individual arrives on Christmas Island. The Chair of the committee considers
that there should be a formal requirement for legal assistance to be provided
as soon as practicable, ideally within three days of a detainee arriving in
Australia. In order to facilitate this occurring, the Australian Government
should appropriately resource National Legal Aid to station a full-time
independent legal aid representative on Christmas Island to provide prompt
legal assistance to these individuals.
Note: these issues are discussed in chapter 2 of the
majority report at paragraphs 2.35–2.42.
Recommendation 4
1.12
The Chair of the committee recommends that the Migration Act
1958 be amended to require that legal assistance be provided to all
individuals suspected of people smuggling offences who claim to be minors within
three days of their arrival in Australia.
Recommendation 5
1.13
The Chair of the committee recommends that the government
appropriately resource National Legal Aid to station a full-time independent
legal aid representative on Christmas Island, to provide legal assistance in
person to all foreign boat crew who arrive there suspected of people smuggling
offences.
Limits on pre-charge detention for people smuggling suspects who claim to
be minors
1.14
During the inquiry, the committee heard that in a large number of cases
minors have been detained in Australia for months before being charged with any
Commonwealth offence. While AFP investigations relating to people smuggling
offences where age is in dispute are complex, lengthy periods of detention are
unacceptable in any circumstances. Additionally, lengthy pre‑charge
detention of suspects who claim to be minors is contrary to Australia's
obligations under the UN Convention on the Rights of the Child. Recommendation 12
of the recent AHRC report states:
The Attorney-General should set and ensure the implementation
of an appropriate time limit between the apprehension of a young person
suspected of people smuggling who does not admit to being over the age of 18
years and the bringing of a charge or charges against him.[4]
1.15
The Chair of the committee agrees with the AHRC that pre-charge
detention for suspects who claim to be minors should be subject to strict time
limits. Such limits should be enshrined in legislation, rather than simply
contained in government policy, to ensure that individuals who may be children
cannot be subject to extensive or arbitrary pre-charge detention. A two-week
time limit is reasonable in this context to ensure that human rights breaches
do not occur.
Note: pre-charge detention for people smuggling suspects is
discussed in chapter 2 of the majority report at paragraphs 2.24–2.29.
Recommendation 6
1.16
The Chair of the committee recommends that the Crimes Act 1914
be amended to require that an individual suspected of people smuggling offences
who claims to be a minor can only be detained in Australia for a maximum of 14 days
before being charged or released from detention.
Review of Criminal Justice Stay Certificates for individuals suspected of
people smuggling offences
1.17
The committee has heard that through the issuing of Criminal Justice
Stay Certificates, people smuggling suspects who may be minors can be held
virtually indefinitely in detention without access to any administrative or
judicial review. The Chair of the committee considers that this is wholly
inappropriate in cases where age is in dispute, and notes that in some cases
this arrangement has resulted in individuals being detained in Australia for
months, only then to be released and returned to Indonesia due to concerns that
they are juveniles. In cases where age is in dispute, Criminal Justice Stay Certificates
issued to prevent individuals suspected of people smuggling offences from
leaving Australia should be subject to periodic judicial review, to ensure that
individuals in these cases are not subject to indefinite or arbitrary
detention.
1.18
The AHRC recommended that AGD should 'establish and monitor a process
whereby there is regular and frequent review of the continuing need for each
Criminal Justice Stay Certificate' given by the Attorney‑General or his
or her delegates.[5]
Further, evidence was presented to this inquiry that, under Australian law,
detention warrants for terrorism suspects requested by ASIO must be renewed by
a federal magistrate or judge every seven days.[6]
The Chair of the committee sees no reason why Criminal Justice Stay
Certificates authorising the detention of individuals suspected of people
smuggling offences under the Migration Act should not be subject to similar
judicial review to protect the rights of detainees.
Note: the use of Criminal Justice Stay Certificates and
judicial oversight of detainees is discussed in chapter 2 of the majority
report at paragraphs 2.28 and 2.30–2.31.
Recommendation 7
1.19
The Chair of the committee recommends that the Migration Act 1958
be amended to require that, where Criminal Justice Stay Certificates are issued
in respect of individuals suspected of people smuggling offences who claim to
be minors, those certificates should be subject to periodic judicial review.
Places of detention for suspects who claim to be minors
1.20
The inquiry heard that Indonesian boat crew who claim to be minors have
been detained in immigration detention facilities and adult correctional
facilities for long periods of time. DIAC informed the committee that
individuals who claim to be minors are generally held in Alternate Places of
Detention rather than higher-security Immigration Detention Centres. However,
the Chair of the committee believes that the government should consider options
for housing any Indonesian nationals who claim to be children in
community-based detention arrangements, unless exceptional circumstances exist.
1.21
While DIAC should retain the discretion to keep individuals in more
secure facilities if they are manifestly not children or some other presenting
risk factor exists, young Indonesians who claim to be minors should be moved
into community detention arrangements wherever possible while their cases are finalised.
Note: the location of detention for individuals claiming to
be minors is discussed in chapter 2 of the majority report at paragraphs
2.32–2.34.
Recommendation 8
1.22
The Chair of the committee recommends that an individual detained in
Australia on suspicion of people smuggling charges who claims to be a minor
must be held in community detention rather than immigration detention
facilities while their case is considered, unless there is a clear reason why
this would be inappropriate.
Issues relating to age determination hearings
1.23
The committee also heard evidence that, in matters where age is in
dispute, there is often a lengthy delay until an age determination hearing
before a court is held. As noted in chapter 2 of the majority report,
statistics provided by the Commonwealth Director of Public Prosecutions (CDPP)
indicate that in the 13 relevant cases since September 2008 where age
determination hearings have taken place, the average time between arrival in
Australia and the age determination decision was 429 days. While a variety
of factors may affect how quickly such a matter can come before a court, delays
of this length are unacceptable.
1.24
Accordingly, the Chair of the committee concludes that appropriate time
limits should be imposed for investigating officials to make applications to
determine age for persons charged with people smuggling offences who claim to
be less than 18 years of age. A time limit of 30 days, either from the
time the individual is detained in Australia or the time at which the
individual first makes the claim that they are a minor, is sufficient to allow
Australian authorities to conduct investigations.
1.25
The committee also received evidence regarding cases where information
held by the CDPP relating to a suspect's age was not placed before a court
during an age determination hearing. The Chair of the committee believes that
in cases where information relating to a suspect's age is in the possession of
either the CDPP or the defence counsel, it should be offered to the court so
that the relevant judicial officer can decide whether the evidence is
admissible.
1.26
The Chair acknowledges the CDPP's argument that in such cases the
validity and underlying provenance of the evidence was questionable, and that
the CDPP has taken a more generous approach in not contesting the proffering of
information relating to a suspect's age in recent cases. Nonetheless, the CDPP
should continue to review its processes to ensure that all age-related evidence
in its possession is available to the court during an age determination
hearing, to enable the court to ultimately assess and determine the probity of
that evidence.
Note: issues relating to age determination hearings are
discussed in chapter 3 of the majority report at paragraphs 3.47–3.54. CDPP
statistics relating to the average length of time between arrival in Australia
and an age determination hearing occurring is also included in chapter 2 of the
majority report at paragraph 2.25.
Recommendation 9
1.27
The Chair of the committee recommends that the Crimes Act 1914 be
amended to require that an investigating official must make an application to a
magistrate or judge to determine the age of an individual charged with a people
smuggling offence who claims to be a minor within 30 days of:
- the suspect being taken into immigration detention in Australia;
or
- the suspect first making a claim that they are a minor.
Recommendation 10
1.28
The Chair of the committee recommends that the Commonwealth Director of
Public Prosecutions review its procedures to ensure that all age‑related
evidence in its possession is made available to the court during age
determination hearings.
Options for assisting affected individuals
1.29
The inquiry heard evidence that young Indonesians detained in Australia
were subjected to arbitrary detention, housed in adult facilities with
convicted murderers and paedophiles, and separated from their families for significant
lengths of time. The Australian Psychological Society informed the committee
that prolonged detention has a serious negative mental health impact on young
people and children, such as the Indonesian nationals in these cases.[7]
1.30
The policy changes that have occurred over the last year will assist in
reducing the risk of Indonesian minors being inappropriately detained in
Australia in the future. However, the Chair of the committee is of the view
that appropriate reparations need to be made to assist those individuals who
have been wrongly detained or imprisoned in Australia in the past.
1.31
As such, the Chair of the committee considers that the Australian
Government should offer an official apology to all Indonesian nationals who
have been detained or imprisoned in Australia on people smuggling charges, only
to be later released and returned to Indonesia on the grounds that they were
probably minors at the time of offending.
1.32
In light of the suffering caused to Indonesian minors who have been
wrongfully detained or imprisoned in Australia, appropriate compensation should
also be made available to individuals who have been wrongly detained in
Australia, even if they have now returned to Indonesia. The provision of
compensation where human rights breaches have occurred is consistent with
Australia's international human rights obligations.
1.33
The Chair of the committee notes the following evidence from the AGD/AFP
submission to this inquiry:
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.[8]
1.34
Generally speaking, the individuals who have been affected and wrongly
imprisoned in these cases are illiterate, poor, non-English speaking Indonesian
teenagers, who may have no realistic prospect of finding appropriate legal
representation and making a compensation claim in Australia. The Chair of the
committee considers that the Australian Government must go beyond simply
waiting for possible compensation claims to be brought by affected individuals
in the future; rather, the government must take proactive steps to find and
compensate Indonesian minors who have been wrongly imprisoned in Australia.
1.35
The Chair of the committee agrees with the Migrant and Refugee Rights
Project that the Australian Government should establish an appropriate
administrative scheme to investigate and make available compensation to
affected individuals who have now returned to Indonesia.[9]
This function could be set up as a stand-alone entity, or could be housed
within the Attorney-General's Department. Further, compensation decisions made
under this scheme should be subject to judicial review, to ensure that the
amount of reparation is appropriate in all the circumstances of each individual
case. There should be a clear presumption that in cases where minors were
wrongly detained or imprisoned, compensation is payable.
1.36
Finally, the Chair of the committee believes that the Australian
Government should investigate options for the provision of culturally
appropriate support to help affected individuals recover from any psychological
trauma and reintegrate into society upon their return to Indonesia.
Note: options for providing assistance to affected minors, including
a formal apology, compensation and other forms of support, are discussed in chapter
4 of the majority report at paragraphs 4.12–4.21.
Recommendation 11
1.37
The Chair of the committee recommends that the Australian Government
issue an apology to those Indonesian nationals who were detained, or convicted
and imprisoned, in Australia for involvement or suspected involvement in people
smuggling offences, only to be later released due to concerns that they were
minors at the time of offending or upon the completion of their sentence.
Recommendation 12
1.38
The Chair of the committee recommends that the Australian Government:
- recognise the right of Indonesian minors who were wrongly
detained or imprisoned in Australia to be paid appropriate compensation;
- initiate a thorough and transparent process to identify
individuals who were wrongly detained, or convicted and imprisoned, in
Australia on people smuggling charges, only to be released due to concerns that
they were minors at the time of offending or upon completion of their sentence;
-
inform these individuals of their right to seek reparation for
any periods of inappropriate detention or imprisonment; and
- establish an appropriate administrative mechanism, subject to
judicial review, for determining rights violations associated with these cases
and enabling compensation payments to be made to these individuals.
Recommendation 13
1.39
The Chair of the committee recommends that the Australian Government
investigate options for providing culturally appropriate psychological support
for Indonesian minors who suffered psychological trauma as a result of being
wrongfully detained in Australia on suspicion of people smuggling.
Ability of Indonesian prisoners to remit monies earned in prison to family
members
1.40
The Chair of the committee condemns in the strongest possible terms the apparent
directive of AGD to the states and territories, which would prevent convicted
Indonesian people smugglers from remitting their gratuity earnings to their
families in Indonesia. The stated policy intent of recovering the detention and
removal costs from individuals convicted of people smuggling offences is, in
the case of boat crew who come from impoverished, subsistence-based communities
and would have little or no ability to pay back such costs, patently illogical
and unacceptable.
1.41
If this approach is pursued in the cases of young people in detention,
it would clearly breach Australia's obligations to protect and uphold the human
rights of such individuals, who themselves are often the subject of
exploitation by people smuggling organisers. The Commonwealth should be seeking
to compensate such individuals, not disadvantage them further or subject them
to additional costs.
1.42
The Chair of the committee notes evidence presented during this inquiry
that the inability of convicted Indonesian fisherman to send money home to
Indonesia has had serious consequences for the families of those individuals in
Indonesia, including in some cases creating impoverishment and destitution as a
direct result of the sole family breadwinner being incarcerated and unable to
send any money home.[10]
1.43
Moreover, the policy position articulated by AGD is internally
inconsistent, as it would still allow Indonesian prisoners to spend gratuities
on items such as food or phone credit, thus apparently negating AGD's stated
goal of using gratuity earnings to contribute towards the removal and detention
costs of these individuals.
1.44
The Chair of the committee is firmly of the view that Indonesian
prisoners should have the same rights as any other prisoners in regards to
their ability to remit money home to their families, and that the government's
stated policy position of seeking to recover costs from impoverished Indonesian
fishermen should be reversed immediately.
Note: the issue of Indonesian prisoners in Australia
remitting money to Indonesia is discussed in chapter 2 of the majority report
at paragraphs 2.59–2.60.
Recommendation 14
1.45
The Chair of the committee recommends that the Attorney-General's
Department request that the states and territories afford persons convicted of
people smuggling offences the right to remit a portion of any income earned in
prison to their relatives in Indonesia.
Recommendation 15
1.46
The Chair of the committee recommends that the Australian Government
immediately reverse the policy of seeking to recover the costs of detention and
removal from Australia from Indonesian boat crew convicted of people smuggling
offences.
Senator Penny Wright
Chair
Australian Greens |
Senator
Sarah Hanson-Young
Australian
Greens |
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