Recommendations
An age of uncertainty
Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children
Recommendations
Recommendation 1: The Migration Act 1958 (Cth), and if appropriate the Crimes Act 1914 (Cth), should be amended to make clear that for the purposes of Part 2, Division 12, Subdivision A of the Migration Act, an individual who claims to be under the age of 18 years must be deemed to be a minor unless the relevant decision-maker is positively satisfied, or in the case of a judicial decision-maker, satisfied on the balance of probabilities after taking into account the matters identified in s 140(2) of the Evidence Act 1995 (Cth), that the individual is over the age of 18 years.
Recommendation 2: An individual suspected of people smuggling who says that he is a child, and who is not manifestly an adult, should be provided with an independent guardian with responsibility for advocating for the protection of his best interests.
Recommendation 3: No procedure which involves human imaging using radiation should be specified as a prescribed procedure for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth), or remain a prescribed procedure for that purpose, without a justification of the procedure being undertaken in accordance with the requirements of paragraphs 3.18, 3.61–3.64 and 3.66 of the International Atomic Energy Agency Safety Standard: Radiation Protection and Safety of Radiation Sources: International Basic Safety Standards – Interim Edition (General Safety Requirements: Part 3) or any later edition of these requirements. Such justification should take into account contemporary understanding of the extent to which the procedure is informative of chronological age.
Recommendation 4: The Crimes Act 1914 (Cth) and, if appropriate, the Crimes Regulations 1990 (Cth), or alternatively the Evidence Act 1995 (Cth), should be amended to ensure that expert evidence which is wholly or substantially based on the analysis of a wrist x-ray is not admissible in a legal proceeding as proof, or as evidence tending to prove, that the subject of the wrist x-ray is over the age of 18 years.
Recommendation 5: Imaging of an individual’s dentition using radiation (dental x-ray) should not be specified for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth) as a prescribed procedure for the determination of age
Recommendation 6: Imaging of an individual’s clavicle using radiation (clavicle x-ray) should not be specified for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth) as a prescribed procedure for the determination of age.
Recommendation 7: If any forensic procedure is specified as a prescribed procedure for the purpose of age determination within the meaning of s 3ZQA(2) of the Crimes Act 1914 (Cth), Part IAA Division 4A consideration should be given to amending the Crimes Act to provide that such a procedure may only be undertaken in the circumstances in which a forensic procedure within the meaning of s 23WA of the Crimes Act may be undertaken with respect to a child.
Recommendation 8: Unless and until recommendation 9 is implemented, the Commissioner of Federal Police should ensure that all Federal Agents are aware of their obligations when acting as an ‘investigating official’ in reliance on s 3ZQC of the Crimes Act 1914 (Cth) and should further ensure that protocols or guidelines are put in place to ensure that these obligations are met. Specifically, an investigating official should be aware that the role of any independent adult person is to represent the interests of the person in respect of whom the prescribed procedure is to be carried out and that he or she should be so advised.
Recommendation 9: Where it is necessary for an investigating official within the meaning of s 3ZQB(1) of the Crimes Act 1914 (Cth), who suspects that a person may have committed a Commonwealth offence, to determine whether a person is, or was at the time of the alleged commission of an offence, under the age of 18 years, the investigating official should seek the consent of the person to participate in an age assessment interview.
Where reasonably possible, the interviewer should speak the language ordinarily spoken by the person whose age is to be assessed and should be familiar with the culture of the place from which the person comes. The interviewer, who ideally should be independent of the Commonwealth, should be instructed that he or she should only make an assessment that the person is over the age of 18 years if positively satisfied that this is the case after allowing for the difficulty of assessing age by interview.
All interviewers should be trained, should follow an established procedure and should record their interviews. Their conclusions and the reasons for their conclusions should be documented.
Recommendation 10: Any individual suspected of people smuggling who says that he is a child and who is not manifestly an adult should be offered access to legal advice prior to participating in any age assessment interview intended to be relied on in a legal proceeding.
Recommendation 11: If a decision is made to investigate or prosecute an individual suspected of people smuggling who does not admit that he was over the age of 18 years at the date of the offence of which he is suspected, immediate efforts should be made to obtain documentary evidence of age from his country of origin.
Recommendation 12: The Attorney-General should set and ensure the implementation of an appropriate time limit between the apprehension of a young person suspected of people smuggling who does not admit to being over the age of 18 years and the bringing of a charge or charges against him. The Attorney-General should further consult with the Commonwealth Director of Public Prosecutions concerning procedures put in place by the Director to ensure the expeditious trial of any young person who does not admit to being over the age of 18 years and who is charged with a Commonwealth offence. Should the Attorney-General not be satisfied that appropriate procedures have been put in place by the Director, the Attorney-General should issue guidelines on this topic under s 8 of the Director of Public Prosecutions Act 1983 (Cth).
Recommendation 13: The Commonwealth should only in exceptional circumstances, and after bringing those circumstances to the attention of the decision-maker, oppose bail where a person who claims to be a minor, and is not manifestly an adult, has been charged with people smuggling. Where a person who claims to be a minor, and is not manifestly an adult, has been charged with people smuggling and granted bail, he should be held in appropriate community detention in the vicinity of his trial court. The Minister for Immigration and Citizenship’s guidelines for the administration of his residence determination powers should be amended so that such cases can be brought to the Minister’s immediate attention.
Recommendation 14: The Attorney-General should consult with the Commonwealth Director of Public Prosecutions concerning procedures put in place by the Director to ensure that the Commonwealth does not adduce expert evidence in legal proceedings where the acceptance by the court of that evidence would be inconsistent with the accused person’s receiving a fair trial. Should the Attorney-General not be satisfied that appropriate procedures have been put in place by the Director, the Attorney-General should seek advice from an appropriately qualified judicial officer or former judicial officer as to the terms of guidelines on this topic that it would be appropriate for her to furnish to the Director under s 8 of the Director of Public Prosecutions Act 1983 (Cth).
Recommendation 15: The Attorney-General’s Department should establish and maintain a process whereby there is regular and frequent review of the continuing need for each Criminal Justice Stay Certificate given by the Attorney-General or his or her delegate. The Attorney-General’s Department should additionally ensure that a Criminal Justice Stay Certificate is cancelled as promptly as compliance with s 162(2) of the Migration Act 1958 (Cth) allows when it is no longer required for the purpose for which it was given.
Recommendation 16: If, at any time, the Commonwealth becomes aware of information that indicates that an individual suspected of people smuggling whose age is in doubt may have been trafficked, he should be treated as a victim of crime and provided with appropriate support.
Recommendation 17: The Australian Government should remove Australia’s reservation to article 37(c) of the Convention on the Rights of the Child.
