7 Some further aspects of the treatment of the young Indonesians

An age of uncertainty

Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children

 

Chapter 7: Some further aspects of the treatment of the young Indonesians

1 Introduction

This chapter discusses some further aspects of the treatment of young Indonesians suspected of people smuggling who said that they were children.

As discussed in Chapter 1, Australia’s international human rights obligations require that individuals who say that they are children be given the benefit of the doubt and treated as minors unless there is proof to the contrary. In the case of unaccompanied children, this should lead to consideration by the State of what steps need to be taken to ensure their special protection and care.

As is clear from the preceding chapters of this report, in many cases the benefit of the doubt was not afforded to young Indonesians who said that they were children. Instead, on the basis of the analysis of a wrist x-ray, they were charged and prosecuted as adults. This has had further consequences, including in many cases, their detention in adult correctional facilities. This chapter considers issues related to the detention of individuals suspected of people smuggling offences who said that they were children. It also considers issues related to their guardianship and to the provision of legal advice and assistance to them. It closes with a brief discussion of whether some of the individuals whose experience this Inquiry is considering might in fact have been victims of trafficking.

2 The detention of individuals suspected of people smuggling offences

2.1 The legal basis for detention

The Migration Act 1958 (Cth) permits, but does not require, the detention of an ‘unlawful non-citizen’ who first arrives in Australia at an ‘excised offshore place’.^[929] It does not appear that any young Indonesian suspected of people smuggling has held an Australian visa. Therefore they have all been ‘unlawful non-citizen[s]’. Nor does it appear that any young Indonesian suspected of people smuggling first landed on the Australian mainland; they nearly all first landed on Christmas Island which is an excised offshore place. Their detention was therefore not mandatory.^[930] However, in practice, almost all non-citizens who arrive by boat without a valid visa are currently taken into detention on Christmas Island. A person who is so detained must be kept in immigration detention until they are either removed from Australia, deported or granted a visa.^[931]

Authority for the detention of individuals suspected of people smuggling is also found in the provisions of the Migration Act relating to the detention of suspected offenders. A person who has travelled to Australia and is believed to have been on board a boat when it was used in connection with the commission of an offence may be detained until a decision is made whether to prosecute the person and, if the decision is to prosecute, for the further period of time that is required for the purposes of the prosecution.^[932]

If an unlawful non-citizen makes a written request to the Minister for Immigration and Citizenship to be removed from Australia, he must ordinarily be removed as soon as reasonably practicable.^[933] In order to stay the removal of a suspect, law enforcement or prosecuting agencies may request that the Attorney-General issue a Criminal Justice Stay Certificate (CJSC).^[934] The Attorney-General may issue a CJSC if he or she (or his or her delegate) is satisfied that a non-citizen should remain in Australia ‘temporarily’ for the purposes of the ‘administration of criminal justice in relation to an offence against a law of the Commonwealth’.^[935] If a CJSC is in force, the non-citizen to whom it applies is not to be removed or deported from Australia even where they have made a written request to the Minister to be removed.^[936]

A Criminal Justice Stay Visa (CJSV) is a temporary visa that may be granted to persons who are subject to a CJSC.^[937] A CJSV is granted at the personal discretion of the Minister for Immigration and Citizenship, having regard to the matters set out in s 158 of the Migration Act. A person who has been issued a CJSV and who is being held in immigration detention is entitled to be released from that detention.^[938]

(a) Criminal Justice Stay Certificates

Individuals suspected of people smuggling are usually issued with a CJSC which prevents their removal from Australia for the duration of a criminal investigation or prosecution, or until a custodial sentence is complete. The Attorney-General’s Department (AGD) informed the Commission that, when an agency requests a CJSC, it provides AGD with ‘a costs undertaking and a completed questionnaire setting out the information required’ in order for a CJSC to be issued.^[939] During the Inquiry hearing, the Attorney-General’s delegate agreed that, before granting a CJSC she needed to be satisfied that the stay of a person’s removal ‘was required for the administration of criminal justice’ and that she required the provision of sufficient information for her to be so satisfied.^[940]

An AGD officer also informed the Commission that CJSCs are only sought by the AFP after the Department of Immigration and Citizenship (DIAC) has assessed the person to be an adult and referred the case to the AFP for investigation.^[941] This may be the process since age assessment procedures changed in December 2011. However, the Commission believes that prior to this date, in many cases, CJSCs were issued to suspects before age assessment processes were completed. For example:

• In one case, a CJSC was issued in August 2010 – one month after the individual concerned was apprehended.^[942] A DIAC age assessment interview was not conducted until October 2010,^[943] and a wrist x-ray was not requested by the AFP until December 2010^[944] – four months after the CJSC was granted.
• In another case, a CJSC was issued in February 2010 – one month before the AFP requested a wrist x-ray.^[945]

The Attorney-General’s delegate has a duty to cancel a CJSC which is no longer required for the purposes for which it was given.^[946] An AGD officer informed the Commission that the relevant agency requests cancellation of a CJSC where an investigation has been completed without proceeding to a prosecution; where a prosecution has been discontinued; or where a person has been acquitted of an offence.^[947]

In September 2010, the AFP National Manager of Crime Operations wrote to a senior AGD officer about his concerns regarding the length of detention of people smuggling crew being held in detention on CJSCs:

Whilst the AFP is taking all reasonable steps to progress investigations in a timely manner, these factors alone mean that a thorough investigation of the suspected offence will be prolonged. The result is the prolonged detention of suspects, far in excess of periods originally anticipated, and for this reason the AFP has concerns regarding these current arrangements.

I believe it is appropriate to reconsider the application of CJSCs in circumstances where prolonged periods of detention are anticipated. ... In cases where prolonged CJSCs are in place, appropriate review mechanisms should also be considered.^[948]

AGD responded by letter to the AFP’s concerns about the prolonged detention of individuals on CJSCs. The letter expressed the view that, while the AFP had in place a clear process for investigation and prosecution of individuals suspected of people smuggling offences, the grant of CJSCs remained appropriate. The letter also noted that it would be appropriate to continue to monitor the time taken to carry out investigations.^[949]

AGD has informed the Commission that there are no formal timeframes for reviewing CJSCs under the Migration Act, but that AGD and relevant agencies have informally implemented practices to review the status of CJSCs as required.^[950] These practices, AGD advised, were as follows:

• In December 2010, the AGD delegate asked the AFP to audit all CJSCs in effect for people smuggling cases, and advise which cases had been referred for prosecution and which were still under investigation. Following this, AGD began to manually record in its database a ‘follow-up date’ three months after the date of the CJSC issue.
• In March 2011, the AFP initiated a new process of sending a weekly report to AGD on all the individuals charged in that week with people smuggling offences, as well as a monthly report of all those who were still under investigation and yet to be charged.
• In late 2011, when the number of cases at the investigation stage decreased, the AFP ceased providing weekly and monthly updates to AGD. Instead it commenced to conduct its own internal review of cases at the investigation stage and advised AGD when to cancel CJSCs.

The Inquiry hearing explored issues relating to the review of CJSCs. It appears that individual CJSCs were reviewed periodically where circumstances, such as the period of time the CJSC had been in operation, prompted the Attorney-General’s delegate to make enquiries with the requesting agency.^[951] However, at the hearing, the Attorney-General’s delegate agreed that the first time that she had proactively sought information from the AFP about current CJSCs and conducted a systematic review of whether each individual CJSC should remain in operation was in December 2010.^[952]

The Commission is aware of some cases where it appears that there was a significant delay between a decision not to prosecute a young Indonesian and the consequent request to cancel his CJSC. For example, in one case a decision was made in late November 2010 not to prosecute an individual who had arrived in Australia in early October 2010.^[953] In mid-February 2011, during a review of CJSCs that had been in place for three months or longer, the AFP realised that he was still in immigration detention.^[954] He was removed from Australia a week later, after spending 134 days in immigration detention. The wrist of this individual was not x-rayed. From the date of birth that he provided to the authorities, it appears that he may have been 12 or 13 years old.

It appears that there have also been some delays in applications for the cancellation of CJSCs in the cases of young Indonesians who were x-rayed and found likely to be under the age of 18 years. Two cases where such delays are evident are discussed in Chapter 4, section 3.

It appears that there were some processes in place to review whether there was an ongoing need for particular CJSCs. However, it is of concern that the first time a systematic review process was instituted was in late 2010. Subsequent review processes appear to have been conducted on an ad hoc basis and, for a significant part of 2011, it does not appear that there was any review of individual cases. It is not clear that the reviews which took place considered questions such as the appropriateness of the length of detention prior to charge. Rather, it appears that decisions to issue or cancel a CJSC were made largely on the basis of the view of the investigating or prosecuting agency as to whether a CJSC was required.

(b) Judicial review of the legal basis for detention

Individuals who have been issued with CJSCs are effectively denied access to judicial review of their detention. This became clear with the decision in [BAI031] v Minister for Immigration & Citizenship; a case in which a number of individuals held in immigration detention facilities in the Northern Territory sought to challenge their detention by applying for writs of habeus corpus.^[955] The Human Rights Law Centre summarises the plaintiffs’ arguments in the case as follows:

the powers contained in sections 189, 147 and 250 of the Migration Act are open ended and, as the plaintiffs were all minors, decisions must be made promptly as to whether to prosecute them or not.^[956]

The court confirmed the Commonwealth’s power to detain the plaintiffs while the CJSCs were in force. Mildren J said that ‘whilst the Attorney-General’s certificate is in force, the provisions of s 250(5) cannot operate’.^[957]

(c) Criminal Justice Stay Visas

As noted above, a person in respect of whom a CJSC has been issued may be granted a CJSV. If granted a CJSV, the person will be released from immigration detention to live in the community.

Information provided to the Inquiry shows that there have been some differences in opinion between Commonwealth agencies about the desirability of granting CJSVs to individuals charged with people smuggling. However, these differences have largely been resolved and the current practice is not to issue CJSVs to individuals charged with people smuggling.

In December 2009, a DIAC document clarifying the immigration status of alleged people smugglers in immigration detention observed that, where a person is charged and taken into criminal custody, consideration will be given to the grant of a CJSV.^[958] This document noted that it is desirable for suspects to be held in immigration detention to enable investigations to take place, and noted the AFP’s concerns that, if a suspect were released from immigration detention on a CJSV, he may abscond into the community or leave Australia of his own volition before investigations into his alleged offence were complete.^[959]

However, the document also noted concerns about the ongoing detention of individuals for whom a CJSC is in force. The document stated:

Where there appears to be unreasonable delay in respect of a particular case, ... DIAC will discuss options with the AFP and other agencies as appropriate for the management and progress of the case, such as consideration of the grant of a CJSV. ... A delay in deciding whether to charge a person beyond a period of three months from the initial police interview will trigger formal consideration by DIAC of the grant of a CJSV.^[960]

The Commission is aware of cases where individuals were granted CJSVs but remained in immigration detention. For example, in one case in late November 2010, an individual is reported by the Office of the Commonwealth Director of Public Prosecutions (Office of the CDPP) to have been issued with a CJSV ‘prior to ... discussions with DIAC which caused DIAC to cease this practice in relation to people smuggling crew’.^[961] The Office of the CDPP expressed concern that if the individual is ‘found to be a juvenile and the prosecution continues, there is a strong likelihood he may be granted bail by the Children’s Court at which point this office may be responsible for his care which will be a complex and expensive undertaking’.^[962]

The issue of whether CJSVs should be granted to suspects who say that they are children was discussed extensively between Commonwealth agencies in mid-2011. These discussions first arose in the context of the [BAI031] case discussed above, with DIAC raising the possibility of granting the plaintiffs in that case CJSVs. In response, the Office of the CDPP observed that it ‘has not been funded nor does it have the resources or capabilities to support these defendants during the course of the criminal proceedings’.^[963]

Similar concerns were raised in June 2011 when it appeared that three defendants in Brisbane would apply for bail and might apply for CJSVs. The Office of the CDPP made it clear that it was not in a position to support any people smuggling defendants should they be released on bail into the community.^[964] These issues are discussed further in section 2.4 below.

The Commission is concerned that no consideration appears to have been given to placing young Indonesians in the least restrictive form of detention available. For these individuals this would have been community-based detention.

2.2 Length of detention

As noted in Chapter 1, under the Convention on the Rights of the Child (CRC), children should only be detained as a last resort and for the shortest appropriate period of time.^[965] The principle of the benefit of the doubt means that a person who says that he or she is a child should be treated as a minor until it is established that he or she is an adult. Consequently, it is of concern that many individuals suspected of people smuggling whose ages were in doubt spent prolonged periods of time detained in either immigration detention facilities or adult correctional facilities or both.

The Commonwealth was advised in May 2011 of the content of the obligations under the CRC with respect to the detention of young Indonesians who said that they were children. This legal advice noted that:

• even where an individual is transferred to a State-based facility, the Australian Government retains ultimate responsibility in respect of the actions of that State or Territory
• the best interests of the child should be a primary consideration in every decision taken in relation to a child accused, including non-citizen children accused of people smuggling offences
• the obligation to detain children only as a last resort and for the shortest appropriate period of time applies to both immigration detention and criminal detention.^[966]

The prolonged detention of young Indonesians suspected of people smuggling is demonstrated by the following figures showing the average length of detention for different categories of individuals suspected of people smuggling whose age was in doubt:

• Individuals who were removed from Australia without charge and without having their wrists x-rayed – average length of detention 66 days.
• Individuals who were found to be a minor after their wrists were x-rayed and then removed from Australia without charge – average length of detention 161 days.
• Individuals whose wrists were x-rayed, were charged as adults and ultimately had the prosecutions against them discontinued – average length of detention 431 days (of these an average of 199 days were spent in adult correctional facilities).
• Individuals who were charged but ultimately found not guilty (six people) – average length of detention 570 days (of these an average of 418 days were spent in adult correctional facilities).
• Individuals who were charged and convicted and ultimately granted early release on licence (15 people) – average length of detention 948 days (of these an average of 864 days were spent in adult correctional facilities).
• Individuals who were charged and convicted and have served the entirety of their sentences (three people) – average length of detention 1088 days (of these an average of 1054 days were spent in adult correctional facilities).

(a) Prolonged detention in immigration detention facilities prior to charge

Many young Indonesians suspected of people smuggling spent prolonged periods of time in immigration detention facilities – either prior to a decision not to prosecute them, resulting in their being removed from Australia; or prior to their being charged with people smuggling.

The above figures show that those individuals who were either immediately accepted by the AFP to be minors, or who were accepted by the AFP to be minors after their wrists were x-rayed, spent an average of 66 or 161 days in immigration detention, depending on whether their wrists were x-rayed.

It appears that a number of individuals, who were ultimately not charged with people smuggling, experienced delays between apprehension and being subject to a wrist x-ray of between five and seven months. For example:

• The AFP did not arrange a wrist x-ray for an individual apprehended in July 2010 until December 2010 – 5 months later.^[967]
• The AFP did not arrange a wrist x-ray for an individual apprehended in August 2010 until February 2011 – 6 months later.^[968]
• The AFP did not arrange a wrist x-ray for an individual apprehended in December 2010 until May 2011 – 5 months later.^[969]
• The AFP did not arrange a wrist x-ray for an individual apprehended in June 2010 until November 2010 – 5 months later.^[970]

In each of these cases, following receipt of the wrist x-ray analysis, the AFP made a decision not to prosecute the individual. It appears that in most cases the decision not to prosecute was made because the wrist x-ray analysis showed that the individual was likely to be under 18 years of age. However, it is not clear from the documents before the Commission whether in some cases the decision not to prosecute was made because the time that had passed between the alleged offence and the date of the x-ray increased the probability that the individual, although skeletally mature at the time of x-ray, was under 18 years of age at the time of the alleged offence.

The Commission is aware that in some cases, delay may be explained by the lack of appropriate x-ray facilities on Christmas Island. In some cases, young Indonesians had to wait for a considerable period of time on Christmas Island before they were transferred to Darwin where appropriate x-ray facilities existed.^[971] Sometimes this delay was attributable to the limited number of places of detention in Darwin suitable for young Indonesians who DIAC assessed to be under 18 years of age.^[972] DIAC appropriately considered that minors should be detained in alternative places of detention which were less restrictive than immigration detention centres.

The young Indonesians who were ultimately charged with people smuggling and who had their prosecutions discontinued spent an average of 186 days (over six months) in immigration detention prior to being charged. This can only be described as prolonged detention. Some submissions to the Inquiry raised the issue of whether the lengthy detention of an unlawful non-citizen for the purposes of making a decision about whether he should be charged with an offence amounts to arbitrary detention within the meaning of the International Covenant on Civil and Political Rights.^[973]

Victoria Legal Aid’s submission to the Inquiry reports a prolonged period of pre-charge detention for the eight accused whom they represented (whose charges were ultimately withdrawn after they were accepted as being children by the Commonwealth). These eight individuals spent an average of 6.9 months in immigration detention before being charged.^[974]

Submissions to the Inquiry argued that this period of pre-charge detention was unreasonable as the investigating authorities should have had sufficient information to make an earlier decision about whether they should be charged. For example, the solicitor Ms Edwina Lloyd noted:

8 months is an unreasonable amount of time to wait to be charged and there has been no reasonable explanation as to why it took so long. It is unreasonable because Luco [name an alias] was identifiedas a crew-member of a vessel bringing asylum seekers into Australian territorial waters. There existed enough physical evidence for the AFP to lay charges upon apprehension.^[975]

Victoria Legal Aid observed that, for nearly every other offence prosecuted in Australia that results in the immediate detention of an accused, a charging decision is made within hours.^[976] Victoria Legal Aid recommend:

that the initial investigation and charging process be expedited for all relevant suspects such that no suspected people smuggler can be detained for more than 14 days before being charged. Two weeks is sufficient time for an accused to be interviewed by the AFP on Christmas Island before being conveyed to another State or Territory for a charge to be laid and prosecution commenced. The prosecuting authorities would then be given adequate time to compile a brief of evidence. In Victoria, this is typically three months.^[977]

Legal Aid NSW contrasted the potential for indefinite detention prior to charge for a person suspected of people smuggling with the regime underpinning other criminal offences. The submission stated that:

NSW and Commonwealth legislation enables police to hold individuals arrested on suspicion of committing an offence for 4 hours, further detention requires a warrant issued through a court. Even in relation to terrorism offences there are time limits on detention and court involvement in extending detention for investigation.^[978]

The AFP has argued that the length of the investigation process is affected by a number of difficulties that it faces in preparing a brief of evidence for the prosecution of people smuggling crew. This includes the length of time it takes to obtain statements from Navy and Customs officers and the challenges in securing witness statements from passengers on boats. These challenges include that most passengers require the assistance of an interpreter.^[979] The AFP assert that these difficulties contribute to the length of time a young Indonesian suspected of people smuggling spends in immigration detention waiting for a decision to be made about whether he should be charged. The AFP reiterated these issues in its response to the draft report.^[980] In its response, the AFP also outlined the delays caused by the significant increase in AFP investigations caused by the high number of boats carrying asylum seekers that arrived in the first four months of 2010, and the whole-of-government negotiations that took place to enable prosecutions to be conducted in jurisdictions other than Western Australia. The change in jurisdiction for prosecutions required the AFP to re-format evidence in a significant number of cases.^[981]

Legal Aid NSW argues that this period of time for investigation is not required in other criminal proceedings. The submission states that:

If a person arrives at Sydney Airport with drugs in their suitcase, they are interviewed, then immediately charged. If subsequent evidence establishes their innocence charges are then dropped. The law allows police to charge a person they reasonably suspect of committing an offence. Once identified as a crew member on a boat suspected of people smuggling there is generally sufficient suspicion to charge individuals and immediately bring them before a court. Witness statements can be obtained later, similar to other criminal matters.^[982]

Furthermore, the argument that a significant period of time is required for investigation does not explain the length of time spent in immigration detention by individuals who were either removed from Australia without undergoing a wrist x-ray (presumably because from their physical appearance it was apparent that they were under 18 years of age) or those who were x-rayed and removed without charge (presumably because the x-ray did not show skeletal maturity or because the length of time between the date of the alleged offence and the wrist x-ray being taken was so long as to make the wrist x-ray analysis uninformative). In these cases, the AFP faced no requirement to prepare a brief of evidence.

The AFP has informed the Commission that the average time taken by the AFP to complete an investigation is currently 104.5 days, from the time of arrival on Christmas Island to the date of the charge.^[983]

(b) Prolonged detention in adult correctional facilities

From the above figures it can be seen that, in those cases where young Indonesians were charged but their prosecutions ultimately discontinued, the individuals spent on average 228 days in adult correctional facilities. From documents provided to the Commission, it appears that the most common reasons for a prosecution being discontinued were either that a decision was made that a court would be unlikely to find that, on the balance of probabilities, the individual was over 18 at the time of the offence and there were no exceptional circumstances to justify the prosecution of a minor; or from late 2011 onwards, because there was no probative evidence of age other than wrist x-ray analysis. This means that a significant proportion of the 55 young Indonesians whose prosecutions were ultimately discontinued may well have been under 18 years of age at the time of their apprehension – and perhaps for some period of time during their detention.

The detention of these young Indonesians in adult correctional facilities appears to have been a consequence of their not being afforded the benefit of the doubt when they said that they were minors. It was also a consequence of the fact that, earlier than mid-2011, bail was opposed in all cases where individuals were charged with people smuggling. Issues related to bail are discussed in section 2.4 below.

Submissions to the Inquiry describe the damage that young Indonesians suffered as a result of being detained in an adult correctional facility. For example, the Victorian Legal Aid submission reported that:

It is our experience that children detained on people smuggling charges are harmed by their time in detention, particularly when they are detained in adult facilities. We know this because we have seen first hand their distress and isolation. The children suffer by virtue of being imprisoned in a foreign country where cultural differences are huge and their native language is not spoken. The effect of having little or no contact with family, particularly at a young age, is immeasurable.^[984]

2.3 Place of detention

As described in section 2.1 above, individuals suspected of people smuggling who say that they are children are taken into immigration detention when they are apprehended. For nearly all of them, their first place of detention is on Christmas Island.

Information provided to the Commission indicates that DIAC practice is to give individuals who say that they are children the benefit of the doubt, and consequently to treat them as if they are children for the period of time that they are in immigration detention. This means that individuals who say that they are children are detained in low security ‘alternative places of detention’ rather than in high security immigration detention centres.^[985] Nonetheless, people detained in such facilities remain under supervision and are not free to come and go.^[986]

Once the AFP makes a decision to charge a person with people smuggling, arrangements are made to transport him to the State or Territory in which he is to be charged and arrested. At the time of being charged, the AFP completes a Prosecution Notice, which sets out the details of the alleged offence and other details relevant to the charge, including the accused person’s date of birth. The individual is remanded into the custody of State or Territory correctional authorities unless he applies for, and is granted, bail.

(a) The AFP assigned an individual a date of birth based on wrist x-ray analysis even where the date of birth was in dispute

The Commonwealth Joint submission states that an individual is generally held in a correctional facility on the basis of the date of birth listed on the Prosecution Notice prepared by the AFP.^[987] Therefore, the date of birth given to an individual on the Prosecution Notice is, in most cases, determinative of his place of detention.

From the documents provided to the Commission, it appears that, where a person’s date of birth is unknown, the AFP, when completing the Prosecution Notice, ordinarily assigned a date of birth to the individual that was consistent with the age given in the wrist x-ray report. That date of birth was usually included on the AFP Statement of Material Facts that was provided to the Office of the CDPP as part of the brief of evidence.

An email from the Office of the CDPP to AGD describing the age determination provisions in the Crimes Act stated:

AFP ask if the crewman will consent to a wrist x-ray. They usually consent. If the report indicates the person is an adult they will be charged as an adult with a DOB consistent with the [x-ray] report.^[988]

From the documents before the Commission regarding individual cases, it appears that the practice of allocating a date of birth consistent with the medical practitioner’s report on the x-ray occurred in most cases where an individual’s exact date of birth was unknown or in dispute. For example, in one case a defence lawyer wrote to the CDPP to ask why his client’s date of birth had been listed as 1 January 1991. The individual had previously told authorities he was born in 1995. The CDPP officer replied, ‘I understand he was allocated that date as it was consistent with the Doctor’s wrist x-ray report’.^[989]

Some staff in the Office of the CDPP instructed the AFP that it was not consistent with CDPP policy to allocate a date of birth to an alleged offender where his exact date of birth was not known. For example, on 20 January 2011, an officer of the Brisbane Office of the CDPP advised the AFP that, under the Office of the CDPP guidelines, the ‘DOB’ on the bench charge sheet should be left blank where the date of birth is unknown.^[990] Again in March 2011, the Office of the CDPP advised AFP to leave the date of birth on the charge sheet for a particular individual blank because his exact date of birth was uncertain.^[991] The Office of the CDPP advised the AFP that it appeared a nominal date of birth had been ascribed to the individual on the basis of the wrist x-ray report and that:

If it’s just a nominal date of birth, this is inappropriate and we should properly concede that his exact date of birth is unknown to Australian authorities.^[992]

However, it appears that the date of birth on the Prosecution Notice was left blank in very few cases.

In its response to the draft report, the AFP explained that the State Police charging system requires a date of birth to be entered when charges are laid. The AFP then states that ‘allocating their claimed date of birth would incorrectly allocate the charge to a children’s court which was not consistent with the CDPP approach’.^[993] While this is true, it is also true that allocating a date of birth consistent with the x-ray report is likely to have resulted in children being detained in adult correctional facilities. The preferable approach in the circumstances is clearly that advised by the Office of the CDPP; that is, to make clear that the exact date of birth is unknown.

(b) Individuals whose age is in dispute were ordinarily remanded to adult correctional facilities

As noted above, individuals who were charged as adults were in most cases detained from that time in adult correctional facilities. Applications for bail were generally opposed until mid-2011. This issue is discussed in section 2.4 below.

It appears that DIAC was concerned about the practice of detaining individuals in adult correctional facilities on the basis of wrist x-ray analysis alone. In an internal DIAC email from October 2010 concerning arrangements for transferring people between detention facilities, the following passage appears:

we would be most grateful if you do not move any of the UAM crew off the island until we have met with the AFP to discuss the age determination process. The AFP have been rigid in their interpretation of wrist x-rays. As a result, it is possible that a minor will be placed in prison and we strongly want to avoid this.^[994]

As the discussion above demonstrates, young Indonesians were detained in adult correctional facilities because they were not afforded the benefit of the doubt when they said that they were minors.

On 8 April 2011, the Commonwealth received preliminary legal advice from the Office of International Law (OIL) within AGD about the content of the obligations of the CRC as they applied to young Indonesians suspected of people smuggling. In summary, OIL advised that the Commonwealth has an obligation to give individuals who say they are a minor the benefit of the doubt and consequently an obligation to detain them separately from adults. The advice goes on to say that an individual should be detained separately from adults until it is proven that he is not a child.^[995]

The holding of an individual who claims to be a child in an adult correctional facility before his age has been determined by a court is directly inconsistent with this advice. No individual who disputed that he was an adult, other than one who was manifestly an adult, should have been held on remand in an adult correctional facility unless and until a court ruled that he was an adult.

It appears that in at least one case from 2010, the Office of the CDPP supported the holding of a young Indonesian whose age was in doubt in an adult correctional facility. In the case of Ali Jasmin (see further Case Study 1 in Appendix 1), the Indonesian Consulate presented a birth certificate to the DIAC office in Western Australia in August 2010 that showed his age as 14 years. DIAC immediately contacted the Office of the CDPP. The Office of the CDPP responded to DIAC to say:

Mr Jasmin should not be released from prison until such time as his age is determined by the Court. ... If the Court determines that he is under the age of 18, then the matter may be remitted to the Children’s Court^[996]

On 15 September 2010, a DIAC officer contacted the Western Australian Office of the CDPP to express her concern about the risk of continuing to detain a person who may be a minor in an adult facility. The Office of the CDPP responded to her concerns by saying the case would take its normal course and that he would continue to be held in Hakea Prison until the court determined otherwise.^[997]

From the documents before the Inquiry, it further appears that even after a court had determined that an individual was not an adult, he may have continued to be held for a period of time in an adult facility. For example, a Judge of the District Court was not satisfied on the balance of probabilities that UPW031 was over 18 at the time of the offence and remitted the matter to Children’s Court. UPW031 was remanded in custody.^[998] There is a signed warrant releasing him from Hakea Prison three days later.^[999]

(c) State and Territory correctional authorities did not receive sufficient information regarding individuals’ claims about their age

Individuals charged with Commonwealth crimes who are remanded in custody, and individuals convicted of Commonwealth crimes and sentenced to imprisonment, are detained in State and Territory correctional facilities.

The Joint Commonwealth submission to the Inquiry states that it is the responsibility of State and Territory correctional facilities to ensure that federal prisoners are managed appropriately.^[1000] Throughout 2011, this point was repeatedly made in talking points for various Ministers. For example, the Minister’s Office Brief for the Minister for Home Affairs and Justice from August 2011 stated that:

The States and Territories are responsible for the management and operation of prisons, including the assessment of each prisoner’s security classification and whether it is desirable to physically separate certain classes of prisoners, such as minors.^[1001]

The Joint Commonwealth submission also claims that the AFP provides to State and Territory correctional authorities all available information concerning the age claims of an individual who has been charged as an adult but maintains that he is a minor.^[1002]

This claim was also repeatedly made in ‘ministerial talking points’ throughout 2011. For example, one talking point stated:

The Australian Federal Police provides State and Territory corrections agencies with information about the age of a person claiming to be a minor to assist those agencies to manage that person appropriately.^[1003]

Under international law, obligations of the Commonwealth cannot be transferred to the States and Territories. It is the Commonwealth’s responsibility to ensure that individuals who say that they were children are afforded the benefit of the doubt and treated consistently with Australia’s human rights obligations, including with respect to their place of detention.

Documents provided to the Inquiry demonstrate that the Commonwealth appears in many cases not to have provided information to State and Territory correctional authorities regarding a young Indonesian’s claims about his age. Where information was provided, it was often insufficient to enable the correctional authorities to determine the appropriate place of detention for the individual whose age was in dispute.

In one case, for example, an AFP officer recommended that OFD030 be treated as a minor and removed to Indonesia based on the result of an x-ray report (a skeletal age of approximately 18 years) and the policy not to prosecute juveniles unless exceptional circumstances exist.^[1004] Four months after the recommendation was made, the AFP sought authority to charge OFD030 and his co-accused as juveniles on the basis that it was not clear who was the captain of the boat and ‘if one was to be repatriated the other may then claim the repatriated member was the master’.^[1005]

Approval to charge the ‘alleged juveniles’ was given.^[1006] In subsequent instructions given to the Officer in Charge of the Brisbane City Watch House, a Federal Agent advised that OFD030 would be charged as an adult.^[1007] He was subsequently arrested and charged as an adult and detained in an adult correctional facility. The prosecution against OFD030 was eventually discontinued. He spent 576 days in detention in Australia, 326 of them in an adult correctional facility.

It appears that in some cases the relevant department of corrective services only became aware that a person’s age was in dispute after they had been held in adult facilities for some time. For example, on 9 September 2010, the Western Australian Department of Corrective Services contacted DIAC saying that ‘[a] question has been raised with regard to the actual age of two Indonesians currently in prison custody in Western Australia’. The Department of Corrective Services asked whether the two individuals had been subject to any ‘bone density age verification’ testing and whether they could be provided the result of those tests.^[1008] DIAC forwarded the request to the AFP for action.

Similarly, on 22 October 2010, an internal Office of the CDPP email noted the concerns of New South Wales Corrections that all information relevant to the detention of individuals was not being shared between the various agencies. The email notes that:

advance notice was not given that one individual claimed to be a juvenile. This also caused a degree of angst for LAC, who are obviously concerned about the prospect of a juvenile being housed in an adult facility.^[1009]

In another example, on 26 July 2011, the Queensland Commissioner of Corrective Services wrote to the Secretary of the Commonwealth AGD to convey a request from the General Manager of Arthur Gorrie Correctional Centre for additional verification of age for ten Indonesian prisoners on remand for people smuggling charges. Queensland Corrective Services were seeking an assurance that it was appropriate for those ten individuals to be incarcerated with the adult prison population.^[1010]

From these examples it appears that, in some cases, State and Territory correctional authorities were not provided with information about an individual’s claims regarding his age.

This issue was recognised by a Senior Assistant Director of the Office of the CDPP who, on 3 March 2011, wrote to the AFP to raise the issue of the provision of information about age to corrective services. The letter noted the importance of providing information concerning a person’s age to State and Territory corrective services to assist in the proper management of young Indonesians. The officer stated:

As we have discussed the AFP may consider providing all relevant information that it is able to provide concerning a person’s age to DIAC and the relevant corrective services organisations to assist them with the proper management of the crew.

I note that section 3ZQJ(2)(a)(i) allows the disclosure of age determination information obtained under Division 4A of Part 1AA of the Crimes Act 1914 for a purpose related to the establishing and complying with the rules governing the detention of the person to whom the age determination information relates. It would be important to ensure that the agencies are informed of the limitations of the analysis of wrist x-ray material.^[1011]

In some cases it appears that the AFP did inform State and Territory correctional authorities that an individual’s age was in dispute, or provided the x-ray report on which they were relying to show that an individual was an adult. However, it appears that the information provided included information about the results of wrist x-rays without explanation of the limitations of this procedure as a means of age assessment.^[1012]

2.4 Bail

The Joint Commonwealth submission to the Inquiry states that the Office of the CDPP does not generally oppose bail applications by people smuggling defendants who say that they were a minor at the time of the alleged offence.^[1013] However, while this seems to be current practice, it appears that this practice was only adopted in July 2011 and not formally communicated to defence lawyers before November 2011.

(a) Bail applications were generally opposed prior to July 2011

The anomaly inherent in the Commonwealth’s opposing bail applications made on behalf of young Indonesians charged with people smuggling is highlighted in the submission made by Victoria Legal Aid. This submission notes that defendants in the circumstances of the young Indonesians would ordinarily have a prima facie entitlement to bail in Victoria:

[accused people] in a like situation of no prior convictions, no history of bail breaches, low risk of re-offending and a likely delay to trial of one to two years, would easily achieve bail.^[1014]

However, until July 2011, the Commonwealth position was generally to oppose bail in all people smuggling matters.

The question of whether bail should be opposed was a contentious issue between Commonwealth agencies during mid-2011. On 6 April 2011, the AFP wrote to the Office of the CDPP to ensure that alleged offenders were housed in the most appropriate detention facility for their age. Accordingly, the AFP proposed that in circumstances where a person had been charged as an adult but maintained that they were a minor, the Office of the CDPP should make an application to have him bailed into immigration detention until his age was determined by the court. DIAC supported this proposal.^[1015]

The Office of the CDPP identified a number of potential risks that could arise from the granting of bail to defendants who said that they are children.^[1016] Despite their concerns, the Office of the CDPP agreed to individuals whose age was in dispute being bailed into immigration detention pending the outcome of an age determination hearing. The CDPP officer noted that the obligation to apply for bail rests with the defendant and proposed:

It would seem the most appropriate course would be for this Office in each of the matters where there is an age determination dispute, to contact the relevant defendant’s legal representative and inform them that should an application for bail be made it would not be opposed on the basis that the person would be bailed to immigration detention and noting that the position in relation to the person being an adult is still maintained.^[1017]

However, at this time AGD did not support the proposal to facilitate the granting of bail to defendants whose age was in dispute. AGD was concerned that granting bail in a particular matter in which the defendant maintained he was a minor in the face of a ‘strong set of facts (the wrist x-ray)’ would weaken arguments against bail in people smuggling matters more generally.^[1018]

AGD maintained this stance despite having received on 8 April 2011 preliminary advice from OIL on Australia’s obligations under the CRC, which included the conclusion that an person claims to be a child then they should be given the benefit of the doubt that they are in fact a child and that detention should be used as a measure of last resort and for the shortest appropriate period of time.^[1019]

On 14 April 2011, the AFP wrote directly to AGD to question whether it is appropriate to hold a defendant who says that he is a child on remand in an adult correctional facility before a court has determined his age. The AFP informed AGD that, in their opinion, an immigration detention facility would ‘provide more appropriate interim accommodation’.^[1020] The AFP contacted the Office of the CDPP at the same time to request that they contact each relevant defendant’s legal representative to inform them that if a bail application was made, it would not be opposed on the basis that the individual would be bailed into immigration detention.^[1021]

On 18 April 2011, the Deputy Director of the Perth Office of the CDPP stated that:

The current practice of opposing bail remains the CDPP position until the current consultations with all other stakeholders in particular the AGD, DIAC and AFP is completed.^[1022]

At this time, the Senior Assistant Director of the Office of the CDPP noted that one potential concern with bailing young Indonesians into immigration detention was that they may have to be moved interstate in order to be housed in an appropriate detention facility and that this may interfere with an individual’s contact with his legal representative.^[1023]

This concern was shared by Legal Aid NSW in its submission to the Inquiry. Legal Aid NSW noted that:

DIAC has advised Legal Aid NSW practitioners that it could not guarantee where the young people would be held if granted bail. They have alternatively advised Legal Aid NSW practitioners that the young person would be moved to Darwin. Legal Aid NSW understands that DIAC have nowhere in Sydney to house unaccompanied young people. ... For these reasons, so far as Legal Aid NSW is aware, no bail applications have been made for individuals charged with people smuggling who claim to be under 18. DIAC should ensure that it is able to house young people who are charged and claim to be under 18 in appropriate community detention in the capital city where they are being tried.^[1024]

On 2 May 2011, the Criminal Justice Division of AGD received formal advice from OIL about Australia’s obligations under the CRC in relation to the apprehension, detention, charge, bail and prosecution of individuals whose age is in dispute. The advice confirmed the preliminary advice given on 8 April 2011 and, in relation to bail, advised that if alternative measures to detention have not been considered there will be a conflict with Australia’s obligation to detain children only as a measure of last resort.^[1025]

In May 2011, a DIAC officer advised an AGD officer that it was DIAC’s view that immigration detention should not be used to provide ongoing accommodation for defendants who have been bailed by the court. DIAC would nevertheless facilitate the appropriate accommodation of individuals who were bailed into immigration detention.^[1026]

(b) Bail applications were generally not opposed from July 2011 onwards

It appears that bail was first granted without opposition from the Commonwealth in mid-June 2011. In one matter heard in Melbourne, bail was granted unopposed on 16 June 2011.^[1027] In another three matters heard together in Brisbane, bail was granted unopposed on 17 June 2011.^[1028] In a further matter heard in Brisbane, bail was granted unopposed on 12 July 2011.^[1029]

On 28 June 2011, a minute was sent to the Commonwealth Director of Public Prosecutions discussing the issue of bail in people smuggling matters. The memo set out the position of the Office of the CDPP on bail in people smuggling matters and noted that the Office of the CDPP could continue to justify opposing bail in people smuggling matters generally, notwithstanding that the basis for opposing bail is tenuous, particularly given that defendants will be bailed into immigration detention. However, given the increasing number of crew who were challenging their age and seeking bail, the memo suggests that the Office of the CDPP adopt a different position for people smuggling crew who say that they are children. The minute recommended:

In matters where a defendant disputes that they are an adult and provides material to support this or there is otherwise some concern that the person may not be an adult, then if the defendant seeks bail this Office should not oppose bail until such time as a Court finds that the person is an adult.^[1030]

On 4 July 2011, the position proposed in the minute was approved by the Director.

On 5 July 2011, the Office of the CDPP informed AGD that the Director had approved a new position in relation to bail for individuals suspected of people smuggling whose age is in doubt and that bail would not be opposed for those individuals until such time as a court finds them to be an adult.^[1031]

Documents before the Commission suggest that the Office of the CDPP did not immediately make its position on bail for young Indonesians public.^[1032] Certainly, in its submission to the Inquiry, the Northern Territory Legal Aid Commission stated that it was not aware of the policy of the Office of the CDPP not to oppose bail where age is in dispute.^[1033]

It further appears that in some cases bail continued to be opposed after the Office of the CDPP adopted the position not to oppose bail where age was in dispute. For example, in the matter of ENO029, the Office of the CDPP received submissions from a defence lawyer on 22 July 2011 stating that his client was 16 years old, that the prosecution against him should be discontinued and that they would be making a bail application. An internal email suggests that the Office of the CDPP response was to indicate that the prosecution would not be discontinued and that bail would be opposed.^[1034] On 15 August 2011, the defence lawyer sent a birth certificate to the Office of the CDPP indicating that ENO029 was under 18 years of age.^[1035] On receipt of the birth certificate, the CDPP indicated to the defendant’s solicitors that bail would not be opposed.^[1036] On 19 August a Minute was provided to the Commonwealth Director of Public Prosecutions recommending that the prosecution be discontinued. The Director approved the Minute on that same day.^[1037] The same CDPP officer who had earlier suggested that bail be opposed recommended that the prosecution against ENO029 be discontinued as it was not in the public interest to proceed. He reported:

I have also seen [ENO029] and my immediate reaction was that he could not possibly be over 18. The photo attached to the submission, if anything, possibly makes him look a little older than seeing him in the flesh.^[1038]

ENO029 spent 546 days in detention in Australia – 383 of them in an adult correctional facility.

The issue of bail for individuals whose age was in dispute was discussed on 3 November 2011 at a meeting between the Department of Foreign Affairs and Trade and Indonesian Embassy officials. At that meeting, the Indonesian officials requested that individuals be bailed into immigration detention in all cases where age is in dispute.^[1039] In a subsequent discussion, AGD advised that, while the Commonwealth does not generally oppose bail where crew say they are minors, this is not a policy setting that has been announced.^[1040]

Following the decision in R v RMA, in which a District Court Judge preferred the evidence of Professor Cole over Dr V. Low, the Office of the CDPP decided to write to the representatives of all defendants in people smuggling matters where age was in dispute to advise them that bail applications would not be opposed. All legal officers at the Office of the CDPP responsible for people smuggling matters where age was in dispute were instructed to write to defendants’ legal representatives in the following terms:

We note that you client is in the process of claiming that he was a juvenile at the time the alleged offence occurred and that no bail application has been made on his behalf. As a result your client has remained on remand rather than in immigration detention.

You would be aware that this Office has as a matter of practice normally not opposed bail in circumstances where defendants in people smuggling matters are claiming that they were juveniles at the time of the offence.

We suggest that your client considers making an application for bail in light of the above practice. As you are aware a bail application can be brought on at any time.^[1041]

From the documents before the Commission, it appears that the defendant’s legal representatives were informed of the change in position in relation to bail soon after this instruction was sent to officers at the Office of the CDPP.

3 Guardianship

Individuals suspected of people smuggling offences who are under the age of 18 (other than those accompanied by an immediate family member) do not have a legal guardian while they are detained in Australia. This is because the Immigration (Guardianship of Children) Act 1946 (Cth), which provides that the Minister for Immigration and Citizenship is the guardian of unaccompanied non-citizen children, applies only to children who intend to become permanent residents of Australia.^[1042] This means that for minor crew, who do not intend to stay in Australia permanently, no-one has legal responsibility for ensuring that their best interests are considered at all times. The Commission President raised this issue with the then Attorney-General in correspondence of 17 February 2011. At the Inquiry hearing, a senior AGD officer admitted that AGD did not act immediately on this concern, but subsequently had discussions with OIL and with DIAC.^[1043] Advice was also sought from OIL regarding the Vienna Convention on Consular Relations after the Indonesian Embassy raised the possibility of Consular officials acting as guardians of young Indonesians in Australia.^[1044] However, it does not appear that any steps have been taken to provide individuals suspected of people smuggling who say that they are minors with guardians.

As discussed in Chapter 1, the principle of the benefit of the doubt means that if there is a possibility that an individual is a child, then he or she should be treated as such. Further, if there is a possibility that a person is a child, he or she has the right to receive special care and protection, including through the appointment of a guardian.^[1045]

The role of a guardian is to ensure that the best interests of the child are considered at all times. For the guardian of a child suspected of people smuggling, this includes ensuring the child’s best interests are considered in decisions about how he is treated while in detention as well as how he is treated during the investigation and prosecution processes.

The Australian Children’s Commissioners and Guardians in their submission to the Inquiry argued that it is important that young people suspected of people smuggling offences have access to an independent guardian to ensure that their best interests are considered in all decisions that affect them. They stated:

To protect the best interests of young people suspected of people smuggling, access to an independent guardian appointed with statutory responsibilities for ensuring the protection of their rights and to monitor their treatment and wellbeing is important. Any appointment of a guardian however should not be considered a substitute for the provision of early access to legal advice, assistance and representation, particularly as the age assessment process has significant ramifications in a criminal law context.^[1046]

In principle, the Commission believes that all children in Australia who are separated from their parents should be provided with an independent guardian to ensure the protection of their best interests. This is especially the case where individuals who say that they are children face investigation and potential prosecution for criminal offences.

In most, but not all, cases, a young Indonesian suspected of people smuggling who said that he was a child was provided with the support of an independent adult during his interviews with the AFP. As set out in Chapter 4, the independent adult was ordinarily a representative from the NGO Life Without Barriers. Life Without Barriers representatives have no legal advocacy responsibilities under the contract between Life Without Barriers and DIAC; they are essentially passive observers in the interview process.^[1047]

As set out in Chapter 4, the Commission does not view the support provided by the independent adult to young Indonesians during the process of providing consent to have been of the standard that a guardian would be expected to provide.

Moreover, it appears that the support provided by the independent adult during an individual’s interview with the AFP for the purpose of the investigation of a people smuggling offence was also not of the standard that a guardian would be expected to provide.

Although the interviewees were offered the opportunity to contact a lawyer, it appears from the documents before the Commission that a large proportion of them elected not to speak to a lawyer before continuing with the AFP investigation interview. The Commission is not aware of any case in which the Life Without Barriers representative advised the child to speak to a lawyer before participating in the AFP investigation interview. As a result, many of these individuals did not speak to any adult who could represent their best interests, or advise them about criminal procedures in Australia, until after they were charged by the AFP as an adult and became entitled to a grant of legal aid. It is reasonable to expect that a legal guardian would be more proactive in encouraging a young person who was being detained for the purpose of a criminal investigation to obtain legal advice at the earliest possible stage. In situations where young people are being investigated and prosecuted for serious criminal offences, it is important that they are provided with a legal guardian who can advocate for the protection of their best interests.

4 Legal advice and assistance

The Joint Commonwealth submission to the Inquiry observes that legal aid funded lawyers are responsible for providing legal advice and representing people smuggling crew in court. The submission states that:

This includes providing advice, both prior to charging and while before the court, on whether to raise age as an issue and the most appropriate way to do so.^[1048]

Records provided to the Commission indicate that young Indonesians suspected of people smuggling are initially offered access to legal assistance when first interviewed by the AFP. This interview is usually for the purposes of obtaining consent for a wrist x-ray to be taken. At the beginning of each interview of this kind the individual is ordinarily advised of his right to communicate with a legal practitioner. In many cases, individuals said that they did not wish to speak to a lawyer at that time.^[1049] It appears that where individuals did speak to a lawyer, they generally still consented to the wrist x-ray procedure.

If the investigation continues, individuals are ordinarily offered an opportunity to participate in an interview with the AFP as part of the investigation process. The documents provided to the Commission indicate that crew are also routinely offered access to legal assistance at the commencement of interviews of this kind. In many cases, individuals have said that they did not wish to speak to a lawyer at that time. Documents provided to the Inquiry indicate that the crew who ask to speak with a lawyer normally refuse to participate in the AFP interview.

In both of the situations described above, access to legal assistance appears to be obtained through a telephone call to the local legal aid office.

The submission by the Northern Territory Legal Aid Commission discussed the legal aid grant process. It reported that individuals who are being held in immigration detention pending investigation of criminal charges are able to contact a legal aid lawyer for preliminary and simple legal advice, including advice about:

• participating in AFP interviews
• the process of consenting to using a wrist x-ray to determine age
• the status of the AFP investigation into their alleged offence.^[1050]

Legal aid agencies expressed concern to the Commission about the point in time at which legal assistance is provided. While it is open for an individual to seek one-off legal advice from a legal aid agency at any time, a grant of legal aid (which means a lawyer is allocated to represent an individual) is generally not made until criminal charges have been laid.

Legal Aid NSW and Legal Aid Queensland both submitted that suspects should be provided with legal advice prior to participating in DIAC entry interviews or DIAC age assessment interviews.^[1051] Legal Aid Queensland submitted that this is because such interviews have been relied upon by the Office of the CDPP in age determination hearings.^[1052]

The Northern Territory Legal Aid Commission also expressed concern that DIAC interviews may have a significant impact on the way in which an individual is treated, yet:

there is no obligation to caution a person or provide access to legal advice prior to participating in these interviews. This is significant as the interview may form the basis of the type of detention in which the person is held, whether or not charges are laid and ultimately there is the potential for them to be used in court in age determination proceedings.^[1053]

Similarly, Legal Aid Queensland submitted that legal assistance should be provided prior to any interview by a DIAC officer which raises questions about a person’s age.^[1054]

Legal Aid NSW also identified a need for individuals suspected of people smuggling whose age is in issue to receive legal advice very early in the investigation process. It submitted:

Immediate advice for all people suspected of people smuggling is essential so that lawyers can obtain instructions about their age. If they are under 18, lawyers need to be able to advise them on the risks and benefits of wrist x-rays and assist in obtaining age documentation, like Family Cards and affidavits from parents as early as possible.^[1055]

Commission staff members assisting the Inquiry met a number of individuals who have been convicted of people smuggling who say that they were children when they were apprehended. Many of those individuals told them that they remembered a long time passing between the time they arrived and the time they first spoke to a lawyer. Most said that the first time they remembered speaking to a lawyer was after they had been charged and detained in prison; usually about one year after arriving in Australia.^[1056]

The Commission is concerned that, in some cases, there were significant delays in young Indonesians being provided with a grant of legal aid after being charged with people smuggling. For example, four young Indonesians who had been remanded to an adult correctional facility on 17 October 2009 had still not been granted legal aid on 2 November 2009.^[1057]

5 Crew may be victims of trafficking

The circumstances of many of the young Indonesians suspected, or convicted, of people smuggling offences suggest that they may have been deceptively or forcibly recruited to work as crew on boats bringing asylum seekers to Australia.

5.1 What is people trafficking?

Trafficking in persons involves the physical movement of people across and within borders through deception, coercion or force for the purpose of exploitation.^[1058] Deceptive or coercive means includes the threat or use of force, fraud and abuse of power or a position of vulnerability.^[1059] Exploitation means conduct serious enough to be described as sexual exploitation, forced labour, slavery or equivalent practices.^[1060]

5.2 The legal framework around trafficking in Australia

The Australian Government has made a commitment to combat trafficking in persons and to provide victims with appropriate support.^[1061]

Australia has international obligations to prevent trafficking in persons. Australia ratified the international protocol to prevent trafficking in 2005.^[1062] Additionally, the CRC, to which Australia is a party, calls on State parties to take all appropriate measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.^[1063]

Australia has passed legislation to create a range of people trafficking offences, including a specific offence of trafficking in children. These offences are found in Division 271 of the Commonwealth Criminal Code.

In a November 2010 statement to Parliament, the then Minister for Home Affairs and Justice, who led the whole-of-government anti-people trafficking strategy, described trafficking in persons as a ‘heinous crime which involves serious contraventions of human rights’.^[1064]

5.3 The experiences of young Indonesians suspected of people smuggling offences

As discussed in Chapter 1, many of the young Indonesians who work on boats that bring asylum seekers to Australia are recruited from conditions of poverty, have low levels of education and have experienced frequent periods of unemployment, taking up work as an opportunity arises.

It appears from the documents before the Commission, and from the interviews between members of Commission staff and individuals convicted of people smuggling, that many of the young Indonesians the subject of this Inquiry were recruited to work on boats bringing asylum seekers to Australia without knowing the purpose of their journey or that their final destination was to be Australia.

Many individuals who have been investigated and prosecuted for people smuggling offences in Australia appear to have been told that they would be transporting cargo, such as rice or fruit, around Indonesian islands or that they would be taking tourists on a tour of the Indonesian archipelago.^[1065] Some individuals report asylum seekers being brought onto the boat some distance from the shore in the middle of the night.^[1066] Many of the young Indonesians said that at that point in time there was no alternative but to stay on the boat that eventually came to Australia.^[1067] In his interview with the AFP, OSB051 said:

I was looking for a boat in order to get a job to bring timber, to transport timber, but I couldn’t find a job. ... He said, Do you want to work with me? He said, If you want to work with me four days, I’ll give you a million. ... So I, I said to him, One million for four days. What am I going to do? And he said, We’ll be transporting rice. Then he told me to get down on the boat and so I waited from the early evening to late night and the rice did not arrive. So, because I was watching over on that boat then, from early, then I went to sleep. So when we left they did not wake me up. And then, in the middle of the night, I woke up and I went aft and there were a lot of people there. I asked the captain, Where are we going? And the captain was silent, did not answer and I said, You know, they said they would take rice and suddenly there are all those people. So I was scared because there were a lot of people. So I started to cry. So they wanted me to be the cook. So for four days, so, so from, until two o’clock in the morning. ... I thought that we arrived in Sumba – that’s another island – because that journey had taken four, four days and I thought we had arrived from Sumba. Then they, they ordered me to put the anchor down. I put the anchor down and there were lights there and I thought we were in Sumba. Then about seven o’clock in the morning suddenly there was the navy and I was scared and I was crying. Then we took us up on the big boat and they, or, or Roger(?) did brought the people here and I said, Yes, I was wrong and I was also cheated by those people. So that was my experience.^[1068]

Some individuals report having been threatened by the captain of the boat, or being left on the boat to travel to Australia when other crew members got off before reaching Australian waters.^[1069] In a memo recommending a prosecution be discontinued, the Office of the CDPP described what one passenger said had happened to the youngest crew member on the boat that had brought him to Australia. He reported:

In the statement of [a passenger] dated 7 January 2011, he noted that there were originally 5 crew members, but that the ‘Captain’ and ‘Mechanic’ got off the vessel near Roti Island. He stated that his son was able to speak Indonesian and that the youngest crew member [name] was ‘crying and asking the Captain to let him get off as well but the Captain wouldn’t let him’. ... He advised that when the two crew got off the vessel at Rote, the youngest crew member started crying. He said the two crew members were speaking softly to the young crew member and that the young crew member was crying softly. ... He said his son told him that the boy was saying he wanted to get off, but the Captain and Mechanic who were leaving the vessel wouldn’t let him. ... [T]he boy said he wanted to get off the vessel, but he was told he had to keep travelling with the passengers.^[1070]

Although most are promised significant sums of money in return for their labour, many individuals report that they were not paid a wage for their work. Alternatively, they report being promised that any payment would be made on their return to Indonesia.^[1071]

These circumstances suggest the possibility that at least some young Indonesians who have crewed boats bringing asylum seekers to Australia are victims of trafficking. While some individuals may not have told the truth about the extent of their knowledge of the purpose of their trip, or about their experiences on the journey, it seems unlikely that they have all been untruthful.

6 Findings

6.1 Findings regarding Criminal Justice Stay Certificates

A decision to issue or grant a CJSC is made by a delegate of the Attorney-General. However, it appears that in the cases under consideration by this Inquiry, the decision to issue or cancel a CJSC was made largely on the basis of the opinion of the investigating or prosecuting agency as to whether a CJSC was required.

For most of the period of time under consideration by this Inquiry, it appears that there was no formal system in place for conducting a systematic review of all CJSCs that were in force. In particular, it appears that there was no systematic review of whether each individual subject to a CJSC continued to be required in Australia for the purpose for which the certificate had been issued. Some individuals remained in detention in Australia for significant periods of time after a decision had been made that they were no longer required for the purpose of investigating or prosecuting a criminal offence. A system of regular and frequent review of CJSCs that are in force should reduce the likelihood of errors of this kind occurring.

6.2 Findings regarding the place and length of detention

Many young Indonesians suspected of people smuggling spent prolonged periods of time in immigration detention facilities, either prior to the making of a decision that they should not be prosecuted, or prior to their being charged with an offence. In some cases this was because it took a significant amount of time for an x-ray of their wrist to be taken. In others, the length of the AFP investigation process affected the time an individual spent in immigration detention prior to charge.

Many young Indonesians suspected of people smuggling spent a significant amount of time in adult correctional facilities after being charged and before ultimately having the prosecution against them discontinued. Many of them were remanded in adult correctional facilities before their age had been determined by a court. Often this was as a result of the AFP assigning an individual a date of birth based on wrist x-ray analysis, even where the exact date of birth was unknown or in dispute. Once a date of birth had been assigned, it does not appear that State and Territory correctional authorities were provided sufficient information about the dispute regarding an individual’s age, including specific information about the limitations of wrist x-ray analysis for determining age, to ensure that individuals were placed in correctional facilities appropriate for their age.

In a large number of cases in which age was in doubt, ultimately a decision was made to discontinue the prosecution because the Commonwealth considered it unlikely that the court would find, on the balance of probabilities, that the individual was over 18 years of age at the time of the offence. It is a reasonable conclusion that a significant proportion of these individuals were in fact under 18 years of age at the time of their apprehension. Many young Indonesians in this situation spent prolonged periods of time in adult correctional facilities.

6.3 Findings regarding bail

It appears that many young Indonesians suspected of people smuggling whose age was in doubt spent a significant amount of time in adult correctional facilities partly because, until July 2011, Commonwealth policy was to oppose applications for bail made in these circumstances. Although, from July 2011, the Commonwealth no longer opposed bail in people smuggling matters where age was in dispute, this change in policy was not announced or communicated to legal representatives until November 2011. As a result of this, many individuals remained in detention in adult correctional facilities for a prolonged period of time before their age had been determined by a court or their case brought to trial.

6.4 Findings regarding guardianship

Young Indonesians suspected of people smuggling, and unaccompanied by any adult who is able to act as their guardian, do not have a guardian in Australia. Consequently, no independent adult is charged with ensuring that their best interests are considered and protected in all decisions and actions concerning them.

6.5 Findings regarding legal advice and assistance

Although young Indonesians suspected of people smuggling whose ages were in doubt were routinely offered an opportunity to speak with a lawyer prior to providing their consent to a wrist x-ray procedure, it appears that in a significant number of cases they did not do so.

Many advocates have argued that access to legal advice should be provided prior to participation in a DIAC age assessment interview. However, the Commission has accepted the submission of DIAC that there will be cases where this is not necessary, for example in the case of an obviously young child who is to be promptly removed to Indonesia.^[1072] A requirement that legal advice be provided before a DIAC age assessment interview in these circumstances may prolong the individuals detention. However, legal advice should be provided prior to any age assessment interview intended to be relied on in a legal proceeding.

In some cases, there were substantial delays between the time an individual was charged with a people smuggling offence and the time that he was provided with a grant of legal aid.

As discussed in section 3 above, young Indonesians suspected of people smuggling do not have a legal guardian in Australia. The effect of this has been that until they have been charged and receive a grant of legal aid, they have no independent adult representing their best interests during the investigation or prosecution processes.

6.6 Findings regarding trafficking

It appears to the Inquiry that some young Indonesians who arrive as crew on boats bringing asylum seekers to Australia may be victims of trafficking. As such, they should be treated as victims of crime and supported appropriately.

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^[928] Deputy Director, CDPP Perth Office, Email to Senior Assistant Director, CDPP, 11 February 2011 (LAL040 – CDPP document 323.0432).
^[929] Migration Act 1958 (Cth), s 189(3).
^[930] Migration Act 1958 (Cth), s 189(3).
^[931] Migration Act 1958 (Cth), s 196(1).
^[932] Migration Act 1958 (Cth), ss 250(1)–(3). But see Human Rights Council of Australia, Submission 39, p 4. The Human Rights Council of Australia argues that there is doubt as to whether s 189 of the Migration Act can permit a person to be detained in immigration detention for the purpose specified in s 250(3). The Commission has not sought to evaluate this argument.
^[933] Migration Act 1958 (Cth), s 198(1).
^[934] Migration Act 1958 (Cth), s 147.
^[935] Migration Act 1958 (Cth), ss 143, 147(1)(b)(iii).
^[936] Migration Act 1958 (Cth), ss 147, 150.
^[937] Migration Act 1958 (Cth), ss 155(2), 157(a), 158.
^[938] Migration Act 1958 (Cth), s 161(2)(b).
^[939] Principal Legal Officer, AGD, Email to Director, Human Rights Unit, Australian Human Rights Commission, 2 April 2012.
^[940] Assistant Secretary, International Crime Cooperation Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 147. See also Migration Act 1958 (Cth), s 147(1)(b)(iii).
^[941] Principal Legal Officer, AGD, Email to Director, Human Rights Unit, Australian Human Rights Commission, 2 April 2012.
^[942] Criminal Justice Stay Certificate, AGD, 13 August 2010 (JAM074 – AFP document 1); Biodata form, DIAC, 2 July 2010 (JAM074 – DIAC document).
^[943] Team Leader, Christmas Island Detention Operations, DIAC, Email to Team Leader, People Smuggling Strike Team, DIAC, 20 October 2010 (JAM074 – DIAC document mail39646050).
^[944] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 21 December 2010 (JAM074 – AFP document 7).
^[945] Criminal Justice Stay Certificate, AGD, 16 February 2010 (TRA029 – AFP document 2); Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 2 March 2010 (TRA029 – AFP document 4).
^[946] Migration Act 1958 (Cth), s 162(1). See also Assistant Secretary, International Crime Cooperation Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 147.
^[947] Principal Legal Officer, AGD, Email to Director, Human Rights Unit, Australian Human Rights Commission, 2 April 2012.
^[948] National Manager Crime Operations, AFP, Letter to First Assistant Secretary, Criminal Justice Division, AGD, 7 September 2010 (AFP document provided 5 April 2012).
^[949] First Assistant Secretary, Criminal Justice Division, AGD, Letter to National Manager Crime Operations, AFP, 20 September 2010 (AFP document provided 5 April 2012).
^[950] Principal Legal Officer, AGD, Email to Director, Human Rights Unit, Australian Human Rights Commission, 2 April 2012.
^[951] Assistant Secretary, International Crime Cooperation Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 152.
^[952] Assistant Secretary, International Crime Cooperation Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 152.
^[953] Federal Agent, AFP, Case Note – Decision not to prosecute, 26 November 2010 (NOK040 – AFP document 1).
^[954] Federal Agent, AFP, Case Note, 10 February 2011 (NOK040 – AFP document 2).
^[955] [BAI031] v Minister for Immigration & Citizenship [2011] NTSC 45, [23].
^[956] Human Rights Law Centre, Submission 34, p 4.
^[957] [BAI031] v Minister for Immigration & Citizenship [2011] NTSC 45, [22].
^[958] Director, Enforcement & Citizenship Litigation Section, DIAC, ‘CJSC for SIEV Crew – Process Paper’, 15 December 2009, Attachment – Email from Director, Enforcement & Citizenship Section, DIAC, to Federal Agent, AFP, 10 May 2011 (DIAC document mail39645896).
^[959] DIAC document mail39645896, above.
^[960] DIAC document mail39645896, above.
^[961] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Director, CDPP, 18 November 2010 (CDPP document 3 – Attachment D).
^[962] CDPP document 3 – Attachment D, above.
^[963] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to the AFP, DIAC and AGD, 11 May 2011 (DIAC document mail39645896).
^[964] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to the AFP, AGD and DIAC, 15 June 2011 (AGD document PROS-42).
^[965] Convention on the Rights of the Child (CRC), art 37(b). At http://www2.ohchr.org/english/law/crc.htm (viewed 9 July 2012).
^[966] Senior Legal Officer, Office of International Law, AGD, Letter to Principal Legal Officer, People Smuggling and Border Protection Section, AGD, 2 May 2011, Attachment – Email from Officer, Border Management and Crime Prevention Branch, Criminal Justice Division, AGD, 4 May 2011 (AGD document PROS-27), pp 1–2, 4.
^[967] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 21 December 2010 (OTF049 – AFP document 4); Federal Agent, AFP, Case Note, 22 December 2010 (OTF049 – AFP document 6).
^[968] Federal Agent, AFP Brisbane Office, Case Note, 14 February 2011 (YAL048 – AFP document 10); Federal Agent, AFP Brisbane Office, Case Note, 18 February 2011 (YAL048 – AFP document 11).
^[969] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 18 May 2011 (GRD044 – AFP document 4); Federal Agent, AFP Canberra Office, Case Note, 25 May 2011 (GRD044 – AFP document 8).
^[970] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 12 November 2010 (CRO033 – AFP document 6); Federal Agent, AFP, Case Note, 1 December 2010 (CRO033 – AFP document 9).
^[971] See for example, Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, Email to DIAC Officers, 28 November 2010 (DIAC document mail39646078); Commonwealth agencies meeting on people smuggling crew issues supporting the Senior Officials’ Committee teleconference, Minutes and Outcomes, 20 May 2011 (AGD document PROS-39).
^[972] See for example, Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, Email to Deputy Project Leader, Community Detention Implementation, DIAC, 21 November 2010 (DIAC document mail39646098); AGD document PROS-39, above.
^[973] Human Rights Council of Australia, Submission 39, p 4; Human Rights Law Centre, Submission 34, p 5.
^[974] Victoria Legal Aid, Submission 13, p 15.
^[975] Edwina Lloyd, Submission 29, p 5. The real name of this individual was changed in the submission provided to the Inquiry.
^[976] Victoria Legal Aid, Submission 13, p 16.
^[977] Victoria Legal Aid, Submission 13, p 16.
^[978] Legal Aid NSW, Submission 35, p 11.
^[979] Australian Government, Joint submission, Submission 30, pp 22–23.
^[980] AFP, Response to draft report, 6 July 2012, pp 14–15.
^[981] AFP, Response to draft report, 6 July 2012, pp 16–17.
^[982] Legal Aid NSW, Submission 35, p 11.
^[983] AFP, Response to the draft report, 6 July 2012, p 17.
^[984] Victoria Legal Aid, Submission 13, pp 12–13.
^[985] Department of Immigration and Citizenship, Submission 37, p 2.
^[986] See generally, Australian Human Rights Commission, Immigration detention and human rights, http://www.humanrights.gov.au/human_rights/immigration/detention_rights.html#5 (viewed 9 July 2012).
^[987] Australian Government, Joint submission, Submission 30, p 25.
^[988] Officer, Legal and Practice Management Branch, CDPP, Email to Senior Legal Officer, Financial Crime & Border Management Section, AGD, 3 February 2010 (AGD document LEG-1).
^[989] Coordinator, Youth Legal Aid Queensland, Email to Officer, CDPP, 19 October 2010 (OFD029 – CDPP document 289.0101).
^[990] Federal Agent, AFP, Case Note, 21 January 2011 (WIL025 – AFP document 15).
^[991] Senior Assistant Director, CDPP Melbourne Office, Letter to Managing Lawyer, Victoria Legal Aid, 7 March 2011 (BOM062 – CDPP document 155.0216).
^[992] Lawyer, CDPP Melbourne Office, Email to Federal Agent, AFP, 7 March 2011 (BOM062 – CDPP document 115.0211).
^[993] AFP, Response to draft report, 6 July 2012, p 23.
^[994] Assistant Director, Principal Advisor’s Unit, Citizenship, Settlement and Multicultural Affairs, DIAC, Email to Officers, DIAC, 13 October 2010 (DIAC document mail39646157).
^[995] Officer, Office of International Law, AGD, ‘People smuggling offences and the Convention on the Rights of the Child’, Attachment – Email from Officer, Office of International Law, AGD, to Legal Officer, AGD, 8 April 2011 (AGD document PROS-13).
^[996] Senior Legal Officer, People Smuggling Branch, CDPP Perth Office, Email to Officers, DIAC, 24 August 2010 (KAD059 – CDPP document 026.0434).
^[997] Special Counsel, DIAC, Email to Officers, DIAC, 17 September 2010 (DIAC document mail39646141).
^[998] Transcript of Proceedings, The Queen v RMA (District Court of Western Australia, Eaton DCJ, 11 November 2011), p 261.
^[999] Warrant directing discharge of person held in custody, CDPP, 14 November 2011 (UPW031 – CDPP document 038.0006).
^[1000] Australian Government, Joint submission, Submission 30, pp 24–25.
^[1001] Ministers’ Office Brief – Minister for Home Affairs, Crew prosecution and age determination issues, 30 August 2011 (AGD document BRIEF-32).
^[1002] Australian Government, Joint submission, Submission 30, p 25.
^[1003] Ministers’ Office Brief – Minister for Home Affairs, Crew prosecution and age determination issues, 30 August 2011 (AGD document BRIEF-32).
^[1004] Federal Agent, AFP, Case Note, 13 May 2010 (OFD030 – AFP document 8); Federal Agent, AFP, Email to Team Leader, AFP Brisbane Office, 22 July 2010 (OFD030 – AFP document 48).
^[1005] Federal Agent, AFP Brisbane Office, Minute to Coordinator, Crime Operations, AFP Brisbane Office, 17 September 2010 (OFD030 – AFP document 40).
^[1006] Federal Agent, AFP Brisbane Office, Case Note: Authority to charge, 30 November 2011 (OFD030 – AFP document 57).
^[1007] Federal Agent, AFP Brisbane Office, Email to Federal Agent, AFP, 27 September 2010 (OFD030 – AFP document 41).
^[1008] Intelligence Analyst, Justice Intelligence Services, WA Department of Corrective Services, Email to WA Returns and Removals, DIAC, 9 September 2010 (KAD059 – DIAC document mail39646221).
^[1009] Senior Assistant Director, Counter Terrorism & People Smuggling Branch, CDPP, Email to Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, 22 October 2010 (DIAC document mail39646033).
^[1010] Commissioner, Queensland Corrective Services, Letter to Secretary, AGD, 26 July 2011 (AGD document ENG-ST-26).
^[1011] Senior Assistant Director, CDPP, Letter to Assistant Commissioner, National Manager Crime Operations, AFP, 3 March 2011 (CDPP document Attachment D Document 5).
^[1012] See for example, Federal Agent, People Smuggling Strike Team, AFP, Email to Federal Agent, AFP, 20 May 2011 (WID021 – CDPP document 089.0154).
^[1013] Australian Government, Joint submission, Submission 30, p 25.
^[1014] Victoria Legal Aid, Submission 13, p 5.
^[1015] Assistant Commissioner, National Manager Crime Operations, AFP, Email to Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, 6 April 2011 (AFP document).
^[1016] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Assistant Commissioner, National Manager Crime Operations, AFP, 7 April 2011 (AFP document).
^[1017] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Assistant Commissioner, National Manager Crime Operations, AFP, 7 April 2011 (AFP document).
^[1018] Principal Legal Officer, People Smuggling, Criminal Justice Division, AGD, Email to Officers, AGD, 7 April 2011 (AGD document PROS-14).
^[1019] Officer, Office of International Law, AGD, ‘People Smuggling Offences and the Convention on the Rights of the Child to AGD officers: Preliminary responses’, Attachment – Email from Officer, Office of International Law, AGD, to Legal Officer, AGD, 8 April 2011 (AGD document PROS-13).
^[1020] Assistant Commissioner, National Manager Crime Operations, AFP, Email to First Assistant Secretary, Criminal Justice Division, AGD, 14 April 2011 (AFP document).
^[1021] Assistant Commissioner, National Manager Crime Operations, AFP, Email to Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, 14 April 2011 (AFP document).
^[1022] Deputy Director, CDPP Perth Office, Email to People Smuggling group list, 18 April 2011 (BOM062 – CDPP document 052.0024).
^[1023] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Assistant Commissioner, National Manager Crime Operations, AFP, 19 April 2011 (AGD document PROS-25).
^[1024] Legal Aid NSW, Submission 35, p 10.
^[1025] Senior Legal Officer, Office of International Law, AGD, Letter to Officer, AGD, People Smuggling and Border Protection Section, AGD, 2 May 2011 (AGD document PROS-27), pp 5–6.
^[1026] Acting Director, Irregular Maritime Arrivals Operations Section, Community & Detention Services Division, DIAC, Email to Deputy Project Leader, Community Detention Implementation, Principal Advisor’s Unit, DIAC, 16 May 2011 (DIAC document mail39645765).
^[1027] Federal Agent, AFP, Case Note, 1 July 2011 (TOW043 – AFP document 25).
^[1028] Federal Agent, AFP, Case Note, 17 June 2011 (WIL024 – AFP document 25).
^[1029] Federal Agent, AFP, Case Note, 12 July 2011 (BAZ138 – AFP document 25).
^[1030] Officer, CDPP Head Office, Minute to Director, CDPP, 28 June 2011 (BAZ138 – CDPP document 323.0701).
^[1031] Acting Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Principal Legal Officer, AGD, 5 July 2011 (AGD document PROS-55).
^[1032] Acting Senior Director, Legal and Practice Management and Policy Branch, CDPP, Email to People Smuggling and Trafficking Section, Border Management and Crime Prevention Branch, AGD, 5 July 2011 (AGD document PROS-54).
^[1033] Northern Territory Legal Aid Commission, Submission 32, p 6.
^[1034] Senior Assistant Director, People Smuggling, CDPP, Email to Officers, CDPP, 25 July 2011 (ENO029 – CDPP document 160.0301).
^[1035] Counsel for defence, Letter to Office of the CDPP, 15 August 2011 (ENO029 – CDPP document 160.0106).
^[1036] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012.
^[1037] Acting Senior Assistant Director, Office of the CDPP, Minute to Director, CDPP, 19 August 2011 (ENO029 – CDPP document 323.0535).
^[1038] Senior Assistant Director, People Smuggling Branch, CDPP, Minute to Director, CDPP, 18 August 2011 (ENO029 – CDPP document 323.0537).
^[1039] Director INA, Indonesia, Regional Issues and East Timor Branch, South-East Asia Division, Department of Foreign Affairs and Trade, Email to Principal Legal Officer, AGD, 3 November 2011 (AGD document ENG-IG-35).
^[1040] Principal Legal Officer, AGD, Email to Director INA, Indonesia, Regional Issues and East Timor Branch, South-East Asia Division, Department of Foreign Affairs and Trade, 3 November 2011 (AGD document ENG-IG-35).
^[1041] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Officers, CDPP, 15 November 2011 (TEN051 – CDPP document 286.0157).
^[1042] Immigration (Guardianship of Children) Act 1946 (Cth), s 4AAA(1)(c).
^[1043] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 122; Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 160–161.
^[1044] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 161.
^[1045] Committee on the Rights of the Child, General Comment No. 6 – Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, UN Doc CRC/GC/2005/6 (2005), para 33. At http://www.unhcr.org/refworld/docid/42dd174b4.html (viewed 9 July 2012).
^[1046] Children’s Commissioners and Guardians, Submission 31, p 6.
^[1047] ‘Contract of Services, Schedule 2C, Item B. Services’, DIAC (DIAC document provided to Commission 19 January 2012); Deputy Project Leader, Community Detention Implementation, Principal Advisor’s Unit, DIAC, Email to Principal Legal Officer, AGD, 11 March 2011 (DIAC document mail39642174).
^[1048] Australian Government, Joint submission, Submission 30, p 26.
^[1049] As discussed in section 3 above, the Commission is not aware of any case in which the independent adult present at the interview encouraged the young Indonesian to seek legal advice before participating in the AFP interview.
^[1050] Northern Territory Legal Aid Commission, Submission 32, pp 2–3.
^[1051] Legal Aid NSW, Submission 35, pp 10–11; Legal Aid Queensland, Submission 6, p 4.
^[1052] Legal Aid Queensland, Submission 6, p 1.
^[1053] Northern Territory Legal Aid Commission, Submission 32, p 4.
^[1054] Legal Aid Queensland, Submission 6, p 1.
^[1055] Legal Aid NSW, Submission 35, pp 10–11.
^[1056] Australian Human Rights Commission interviews, Albany Regional Prison and Pardelup Prison Farm, 27 April 2012.
^[1057] Officer for the Director, CDPP, Letter to Director of Legal Aid Western Australia, 2 November 2009 (WAK087 – CDPP document 045.0208).
^[1058] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 2000 (Protocol on Trafficking), art 3(a). At http://www.unhcr.org/refworld/docid/4720706c0.html (viewed 9 July 2012). See also Australian Government, Trafficking in Persons: the Australian Government Response, 1 July 2010 – 30 June 2011 (2011). At http://www.ag.gov.au/Peopletrafficking/Documents/Trafficking+in+Persons.pdf (viewed 9 July 2012).
^[1059] Protocol on Trafficking, above, art 3(a).
^[1060] Australian Institute of Criminology, Trafficking in Persons (November 2011). At http://aic.gov.au/en/crime_types/in_focus/trafficking.aspx (viewed 9 July 2012).
^[1061] Australian Government, Australian Government Anti-People Trafficking Strategy (June 2009). At http://www.ag.gov.au/Documents/TRAFFICKING%20-%20ENHANCED%20STRATEGY%20-%20FACT%20SHEET%20-%20English.pdf (viewed 9 July 2012).
^[1062] See United Nations Office on Drugs and Crime, Status of ratification, acceptance, approval, accession and succession of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, http://www.unodc.org/unodc/en/treaties/CTOC/countrylist-traffickingprotocol.html (viewed 9 July 2012).
^[1063] CRC, note 37, art 35.
^[1064] Ministerial Statement, Hon B O’Connor MP, Minister for Home Affairs and Justice, ‘The Government’s Response to People Trafficking’, 22 November 2010. At http://www.ag.gov.au/Documents/Ministerial%20Statement%20AntiTrafficking.pdf (viewed 9 July 2012).
^[1065] Interview with ALE058, Australian Human Rights Commission, Pardelup Prison Farm, 27 April 2012; Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012; Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012; Interview with WAK087, Australian Human Rights Commission, Pardelup Prison Farm, 27 April 2012.
^[1066] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012; Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.
^[1067] Interview with YRE052, Australian Human Rights Commission, Pardelup Prison Farm, 27 April 2012.
^[1068] Transcript of taped record of interview, AFP, 17 March 2010 (OSB051 – CDPP document 021.0114), p 11.
^[1069] Interview with VMT011, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.
^[1070] Acting Senior Legal Officer, CDPP Sydney Office, Minute to Acting Principal Legal Officer, CDPP, 18 December 2011 (HWD059 – CDPP document 323.0954).
^[1071] Victoria Legal Aid, Submission 13, p 4; Interview with ALE058, Australian Human Rights Commission, Pardelup Prison Farm, 27 April 2012.
^[1072] DIAC, Response to draft report, 6 July 2012.