Inquiry into Crimes Amendment (Fairness for Minors) Bill 2011
Australian Human Rights Commission Submission to the Legal and Constitutional Affairs Committee
1 February 2012
The Australian Human Rights Commission makes this submission to the Senate
Legal and Constitutional Affairs Committees in their Inquiry into the Crimes
Amendment (Fairness for Minors) Bill 2011 (the Bill).
For an individual who is suspected of, or has been charged with, people
smuggling offences in Australia, an assessment or determination that he or she
is probably an adult has significant consequences.
These consequences arise because under the Migration Act 1958 (Cth)
(Migration Act) mandatory minimum sentences of imprisonment apply to some people
smuggling convictions. For example, a mandatory minimum sentence of five years
(with a non-parole period of three years) applies to the offence of aggravated
people smuggling (at least five people) pursuant to s 236B of the Migration
These mandatory minimum sentences do not apply to a
minor. If a person has been charged
with people smuggling offences a court may discharge them without conviction if
it is found on the balance of probabilities that he or she was under 18 years of
age at the time of the offence. In
addition, in most cases, current policy is to not proceed with a prosecution if
a person is found to be less than 18 years of
The Commission recognises that there may be an incentive for an individual
under investigation for people smuggling offences who is aware of this policy to
make a false claim to be a child. The Commission agrees that there needs to be
some method for assessing the age of any person subject to criminal proceedings
who claims to be a child. However, human rights principles require that any
doubt be resolved in favour of a possible child.
The President of the Commission is currently conducting an Inquiry into the
treatment of individuals suspected of people smuggling offences who say that
they are children (Age Assessment Inquiry). Information about this Inquiry may
be found at the following website: www.humanrights.gov.au/ageassessment/index/html.
The Commission has serious concerns that age assessment procedures permitted by
Australian law and frequently used in investigations of individuals for people
smuggling offences may have led to errors in age assessment. Consequently, some
children may have been charged and convicted as adults and spent long periods of
time in detention.
The Commission supports measures that would improve legislative protection
of the human rights of children who are accused of people smuggling
- In particular, the Commission would welcome:
reconsideration by the Australian Parliament of whether wrist x-rays should be a prescribed procedure under the Crimes Act 1914 (Cth) (Crimes Act) for the purposes of age determination
in criminal proceedings
confirmation that an individual non-citizen who
claims to be a minor is presumed to have been a minor at the time of the alleged
offence unless a court is satisfied that the individual was an adult at the time
of the alleged offence
- the establishment of limits on the time available before which an
application for a hearing to determine the age of a non-citizen who claims to be
a child must be made and on the time taken to bring charges against a
non-citizen in criminal proceedings relating to people smuggling
- The report of the Commission’s Age Assessment Inquiry will be
published in mid-2012. In order to not pre-empt the findings of the Age
Assessment Inquiry, the Commission will not make recommendations on all of the
provisions contained in this Bill, particularly regarding whether or not wrist
x-rays should be a prescribed procedure under the Crimes Act. The Age Assessment
Inquiry report, when published, will contain detailed recommendations on matters
relevant to this Bill.
The Australian Human Rights Commission recommends that:
4 Australia’s human
Australia ratified the Convention on the Rights of the Child (CRC) in
1990. The CRC is the key human
rights treaty regarding children’s rights. The CRC recognises that
children are entitled to protection of their basic human rights and require
special protection because of their vulnerability to exploitation and abuse.
Australia’s obligations under the CRC apply to all children in
Australia, regardless of citizenship or immigration status. For the purposes of
the CRC, children are defined as individuals who are under 18 years of
- Article 37(c) of the CRC requires that a child deprived of his or her
liberty be treated in a manner which takes into account the needs of a person of
his or her age and that the child be separated from
adults. Article 37(c) of the CRC states:
States Parties shall ensure that:
(c) Every child deprived of liberty shall be treated with humanity and
respect for the inherent dignity of the human person, and in a manner which
takes into account the needs of persons of his or her age. In particular, every
child deprived of liberty shall be separated from adults unless it is considered
in the child's best interest not to do so and shall have the right to maintain
contact with his or her family through correspondence and visits, save in
Under the CRC, all children in Australia also have the right:
to be treated in a manner which takes into account the child’s age
to be arrested, detained or imprisoned only as a measure of last resort and
for the shortest appropriate period of time (article 37(b))
to be protected from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation including
sexual abuse, while in the care of parents, legal guardians or any other person
who has the care of the child (article 19)
- to be free from arbitrary or unlawful interference with his or her privacy,
family and home (article 16).
5 Age determination
– the use of wrist x-rays
In 2001 the Crimes Act was amended to provide a regime for determining
age. The amendments provide that an
officer can seek permission to carry out a ‘prescribed procedure’,
either with the consent of the person whose age is in question, or by order of a
magistrate. A parliamentary inquiry
into the 2001 amendments considered the value of x-rays in age determination.
The inquiry noted a number of concerns about the precision with which an x-ray
could be used to determine chronological age as distinct from bone age,
including that there is no real correlation between bone age and chronological
age, and that there has been found to be ‘considerable differences in the
level of maturation of the wrist bone, possibly arising especially from
physiological variation in different
Currently, the only prescribed procedure under the Crimes Act is
‘radiograph of the hand and wrist of the person whose age is to be
determined’ (wrist x-ray).
In Australia, when wrist x-rays are obtained for the purposes of age
determination, they are usually interpreted with the aid of the Greulich-Pyle
Radiographic Atlas (the GP Atlas). The GP Atlas was published in 1959 to help
assess the skeletal, as opposed to the chronological, age of children by
reference to wrist x-rays. The GP Atlas consists of a series of standard
hand-wrist x-rays for specified skeletal
ages. Each standard is based on
a group of 100 children of that chronological age. The reference sample used is
a selection of children from the United States, and possibly the United Kingdom,
who were born in the 1930s.
The Commission is aware of significant concern amongst medical and other
experts as to the use of wrist x-rays for age assessment purposes. Concerns of
which the Commission is aware include that:
the GP Atlas was designed for assessment of skeletal age if the
chronological age is known, rather than the
it is not possible, reliably, to estimate the probability that an individual
is of a particular chronological age from an assessment of their skeletal age
using the GP Atlas as results
could be affected by:
a trend towards earlier
differences in skeletal development in different ethnic
differences in skeletal development due to socio-economic background and
- it is not possible to use the GP Atlas to provide a statistical probability
that an individual is under 18 years of
- wrist x-rays cannot be used to assess age with an adequate degree of
- the use of wrist x-rays for administrative purposes raises ethical
- The Commission acknowledges that wrist x-rays have been used, in some
instances, to determine that a person suspected of people smuggling offences was
a child and to facilitate the quick return of that child to Indonesia. However,
as described above, serious consequences flow from a wrongful determination that
an individual charged with people smuggling offences is an adult. Many of those
consequences may impact significantly on the human rights of a child. Given the
serious concern amongst relevant experts about the value of wrist x-rays for the
purposes of determining the age of a particular individual, the Commission would
be seriously troubled if wrist x-rays were being relied upon as sufficient
evidence of themselves to establish that any individual is an adult.
- As a part of the current Age Assessment Inquiry the Commission will consider
in further depth the issues surrounding the use of wrist x-rays as a means of
determining age for the purposes of criminal proceedings. The Commission will
make recommendations about the use of wrist x-rays in the Age Assessment Inquiry
6 Time limits
The Commission is concerned that people under investigation for people
smuggling offences whose age is uncertain have frequently spent very long
periods of time in detention, both in immigration detention prior to charge and
in adult correctional facilities after charges have been laid.
The Commission is aware that in a number of cases an individual suspected of
people smuggling offences was acknowledged to be a child, and subsequently
returned to Indonesia, after having spent over 18 months in detention in
Accordingly, the Commission supports the imposition of limits on the time a
non-citizen suspected of people smuggling offences who claims to be a minor can
be held in detention before an application is made to a court for an order
Proposed s 3ZQAA(3) provides that where a person’s age is in
dispute an investigating official must bring an application to a magistrate to
determine whether that person was 18 years or over at the time of the alleged
offence within 30 days of the person being taken into immigration
The Commission understands that an individual suspected of people smuggling
offences may not always assert that he or she is a minor at the time he or she
is apprehended or initially detained. Accordingly, the Commission recommends
that the 30 day limit on the time within which an investigating official must
make an application seeking an order determining age apply alternatively from
the time that an individual first asserts that he or she is a minor or was a
minor at the time of the alleged offence.
Further, the Commission understands that there may be circumstances in which
a magistrate may wish to authorise further delay in bringing the issue to trial,
for example where evidence is sought from Indonesia or where documents must be
translated. The Commission recommends that the Bill be amended to clarify that a
magistrate may adjourn an age determination hearing where the interests of
justice justify such adjournment.
Recommendation: The Commission recommends that proposed
s 3ZQAA(3) be amended so that the 30 day limit on bringing an application
to a magistrate to determine a person’s age applies from whichever is
- Recommendation: The Commission recommends that the Bill be amended to
clarify that a magistrate may adjourn an age determination hearing where the
interests of justice justify such adjournment.
- The Commission is aware of cases in which an individual under investigation
for people smuggling charges, who says that he or she is a child but who is
suspected of being an adult, has spent very long periods of time in detention
until the investigation into matters relating to age is finalised and either
prosecution is brought or he or she is removed to Indonesia. Lengthy periods of
detention have a significant impact on the human rights of an individual and may
be in breach of Australia’s international human rights obligations to
ensure that detention of any person is proportionate and
necessary. Prolonged detention
may also breach the obligation to detain a child only as a measure of last
resort and for the shortest time
- Accordingly, the Commission supports the imposition of limits on the time a
non-citizen suspected of people smuggling offences can be held in detention
following a determination that he or she was an adult at the time of the alleged
offence and before charges are laid.
- Proposed s 15BA(2) provides that a charge for a people smuggling
offence can only be brought within 14 days of a person who is or asserts that he
or she is under the age of 18 years being taken into immigration detention.
- The Commission is not presently in a position to comment on what might be an
appropriate limit on the time within which a charge must be brought against an
individual who is suspected of people smuggling offences. As a part of the Age
Assessment Inquiry, the Commission is likely to consider the cause and effect of
current delays in investigation and prosecution of people smuggling offences.
7 Place of
The Commission understands that there are Indonesian nationals who assert
that they are minors currently detained in adult jails in Australia. There have
been cases where individuals had spent long periods of time in adult
correctional facilities prior to a decision being made to discontinue a
prosecution following the production of affidavit and documentary evidence from
Detaining children in adult prisons is clearly in breach of
Australia’s obligation under the CRC to detain children separately from
adults and to make the best interests of an individual child a primary
consideration in all decisions concerning
them. There are significant
risks associated with detaining minors in adult correctional facilities,
including that they may be subject to sexual or other forms of assault.
The Commission is aware that it is current Australian Government policy not
to prosecute a minor for people smuggling offences. The Commission acknowledges
that, where exceptional circumstances exist, a minor may be prosecuted and, if
convicted, held in an appropriate youth justice facility. It is the
Commission’s view, however, that where a minor has been charged with
people smuggling offences and is awaiting trial the minor should ordinarily be
released on bail, with appropriate conditions.
Pursuant to proposed s 15(2) of the Bill, an individual who is charged
with people smuggling offences who was or who asserts that he or she was a minor
at the time of the alleged offences would be remanded in a youth justice
facility while awaiting trial.
The Commission submits that holding a child on remand in a youth justice
facility while awaiting trial may not be in their best interests. Holding a
child in a youth justice facility may also be in breach of Australia’s
obligations to ensure any detention of a child is a measure of last
resort. Moreover, the Commission
is concerned that an Indonesian minor would be culturally and linguistically
isolated if he or she were detained in a youth justice facility without other
individuals who share his or her language and culture.
The Commission recognises that current Australian Government policy is that
bail will not be opposed by the Commonwealth in cases where age is in dispute.
In cases where bail has been granted, the individual is usually held in an
immigration detention facility where unaccompanied minors may be held. The
Commission supports the policy of not opposing bail. However, in the
Commission’s view, the principle that the best interests of the child must
be a primary concern should lead to consideration of whether a person granted
bail should also be granted a Criminal Justice Visa and released into the
community, with appropriate conditions, while awaiting trial.
In exceptional circumstances where it is decided to prosecute a minor for
people smuggling offences, it is the Commission’s view that it would
ordinarily be in the best interests of a child awaiting trial to be granted a
Criminal Justice Visa and to be released into the community on bail with
appropriate conditions, while awaiting trial.
- Recommendation: The Commission recommends that proposed s 15(2)
of the Bill be amended to ensure that there is a presumption that an individual
awaiting trial for people smuggling offences who has been determined to be a
minor or who asserts that he or she is a minor be granted a Criminal Justice
Visa and be released on bail with appropriate conditions.
Migration Act 1956 (Cth), ss 233C, 236A, 236B.
Migration Act 1956 (Cth), s
Migration Act 1956 (Cth), s 236A.
 Minors are only
prosecuted for people smuggling offences in exceptional circumstances on the
basis of their significant involvement in a people smuggling venture or multiple
ventures. Since at least September 2008, no prosecution has proceeded for people
smuggling offences against a person found to be a minor: R McClelland,
Attorney-General, Correspondence to the President of the Australian Human Rights
Commission, 31 March 2011.
Convention on the Rights of the Child, opened for signature 20 November
1989, 1577 UNTS 3 (entered into force 2 September 1990), at http://www2.ohchr.org/english/law/crc.htm (viewed 27 January 2012).
Convention on the Rights of the Child, above, article
 While Australia has made a
reservation to article 37(c) of the CRC, that reservation applies to limit the
obligation to separate children from adults in prison only to the extent that a
child’s contact with their families may be compromised taking into account
the geography and demography of Australia.
 Crimes Amendment (Age
Determination) Bill 2001 (Cth).
Crimes Act 1914 (Cth), ss 3ZQA-3ZQK and Crimes Regulations 1990 (Cth), reg 6C.
 Senate Legal
and Constitutional legislation Committee, Consideration of legislation referred
to the Committee, Inquiry into the Provisions of the Crimes Amendment (Age
Determination) Bill 2001, March 2001, pp 24-25.
1990 (Cth), reg 6C.
Greulich and SI Pyle, Radiograph atlas of skeletal development of hand and
 Australian Paediatric Endocrine Group (APEG), Royal Australian and New Zealand
College of Radiologists (RANZCR), Paediatric Imaging Reference Group of RANZCR,
Australian and New Zealand Society for Paediatric Radiology (ANZSPAR), Royal
Australasian College of Physicians (RACP) (APEG et al), Correspondence to C
Bowen, Minister for Immigration and Citizenship, 19 August
 APEG et al,
Correspondence to C Bowen, 19 August 2011; Professor Tim Cole, expert evidence
in R V Daud (2011) WADC 175.
 T Smith and L Brownlees, Age Assessment Practices: a literature review & annotated
bibliography (2011), p
 A Zhang et al,
‘Racial Differences in Growth Patterns of Children Assessed on the Basis
of Bone Age’ (2009) 250(1) Radiology 228. At www.ncbi.nlm.nih.gov/pmc/articles/PMC2817832/ (viewed 15 November 2011); FK Ontell et al, ‘Bone age in children of
diverse ethnicity’ (1996) 167(6) American Journal of Roentgenology 1395. At www.ajronline.org/cgi/content/abstract/167/6/1395 (viewed 15 November 2011); AM Zafar et al, ‘An appraisal of Greulich-Pyle
Atlas for skeletal age assessment in Pakistan’ (2010) 60(7) Journal of
the Pakistan Medical Association 552. At www.ncbi.nlm.nih.gov/pubmed/20578605 (viewed 15 November 2011). FK Ontell, M Ivanovic, DS Ablin, TW Barlow,
‘Bone age in children of diverse ethnicity’ (1997) 169(2) American Journal of Roentgenology, pp 597–8. See also S Mora, M
Boechat, E Petka, HK Huang and V Gilsanz, ‘Skeletal age determinations in
children of European and African descent: applicability of the Greulich and Pyle
standards’ (2001) 50(5) Paediatric Research, pp
 A Schmeling et al, Guidelines for Age Estimation in Living Individuals in Criminal
Proceedings, 2000; Dr Kevin Osbourne, testimony to the Commonwealth Senate
Legal and Constitutional Legislation Committee, 2 March 2001, Inquiry into the
Crime Amendment (Age Determination) Bill 2001, cited in T Smith and L
Brownlees, Age Assessment Practices, note 15, p 14.
 Sir Albert Aynsley-Green
KT, Professor Emeritus of Child Health, ‘Expert commentary on the age
assessment of John Ndollu’, prepared for Fisher Dore Lawyers, Brisbane,
Australia, p 11.
 See for
example, Senate Legal and Constitutional legislation Committee, Consideration of
legislation referred to the Committee, Inquiry into the Provisions of the
Crimes Amendment (Age Determination) Bill 2001, March 2001, para 3.46 and
Covenant on Civil and Political Rights, opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976), at http://www2.ohchr.org/english/law/ccpr.htm (viewed 27Janurary 2012), article
Convention on the
Rights of the Child, note 5, article
Convention on the Rights of the Child, note 5,
article 37(c). See note 7 for the effect of Australia’s reservation to
article 37(c) of the CRC.
Convention on the Rights of the Child, note 5,