Indonesian 'crew' who assist in the passage of Asylum Seekers are charged with 'people smuggling' by Australian authorities. However there shall come a time when members of the legal fraternity will raise the question as to the legal standing of these charges. If the passengers who are seeking Asylum are for instance all granted refugee visas and security clearances by Australia then how is it possible for anyone to be charged with 'people smuggling'? Logically, and legally, people assisting Asylum Seekers, and who are granted refugee visas, and therefore recognised as fleeing UN Convention prescribed persecution and insecurities, are providing humanitarian aide and service.
Indonesian officials are meeting Australian authorities and the Indonesians are raising concerns that Indonesian children are being charged as 'people smugglers' and being held in Australian adult prisons. The Indonesian embassy estimates that 25 Indonesian children are being held in our adult prisons. I estimate that more are being held and that there are a couple of score in Immigration Detention pending the possibility of charges who are under age.
I am trying to assist the release of at least one youth, whom I believe to be 16, from a West Australian prison. I made the disclosure to various authorities on March 18 however he continues to languish in an adult prison as the cogs of justice take their sweet time.
The Australian Federal Police, whom I have discussed age determination practices with, rely on wrist bone X-rays to determine the age of those whose age is in dispute. This method is not failsafe, and though I could be wrong I understand that there is no legal standing for this age determination method to be used on people. It maybe court admissible however some Magistrates have rejected the method. Furthermore there has already been a case where a minor spent twelve months incarcerated in an adult prison however it turned out the wrist bone test was wrong. He is now back in Indonesia.
The AFP explained to me that unfortunately there is no Treaty between Indonesia and Australia as there is between China and Australia for either country to mandatorily notify Consulates and Embassies of their nationals in each others country. However this is not good enough. Where there exists a dispute in terms of age that could lead to someone being a minor why would not the AFP or Immigration authorities consult for instance the Indonesian authorities? Is this not commonsense let alone in my mind moral and legal propriety?
Why would we accept a minimalist non-failsafe check and why would we impose something on others without it having absolute legal standing even if it is not officially illegal to use? Medical tests are prescribed under Quarantine Laws where we seek to provide a health check and rule out communicable diseases, leprosy, tuberculosis, etc.
Australian Courts should not permit non-failsafe age determination practices such as bone scans where in lieu of these we can work with various authorities to ascertain age definitively or beyond reasonable doubt. The onus should be on the State and the Commonwealth to work with authorities to ascertain age. This is not rocket science and Australia should not become a hub of various contradictions, human rights abuses and discrimination in having in its adult prisons the poorest youth and minors of our international neighbours.
Convenor, Human Rights Alliance
PhD Law researcher in Australian Deaths in Custody