Ali Jasmin was 13 years old when the Commonwealth of Australia locked him up in an adult prison for being a deckhand on a boat of Asylum Seekers, and hence for assisting people in the safe passage of Asylum to our shores. International maritime laws and the various United Conventions and protocols asserting the rights of those seeking Asylum would cast this young boy as a hero, and rightfully so however not the Australian government and its institutions.
Like many Indonesian mothers who have had to accept that their children are in Australian adult prisons so did Ali’s mother Aniza – and like all the other mothers approached by us, the Australian news media, and Australian lawyers we realised her disenfranchisement from an ability to be able to do anything from within what would seem to us an impoverished village circumstance. Like all the mums she cries for her child and vests her hopes in her child’s resilience - although she cries out he is only a young boy – to see out an Australian adult prison experience.
Ali, like so many others – like Hadi Kurnawian; who volumes have been written about – languished in a West Australian adult prison. The brunt of what the Commonwealth will only acknowledge at best as “age-disputes” are either on remand or convicted and languish in West Australian adult prisons. At this time, thanks to tenacious advocacy from individual Australian citizens the plight of these children has come to the light of day and preserved by various inquiries and which are still underway – however at this time there are now 25 cases (children) being reviewed by the Office of the Federal Attorney-General – three of them have been recently released as the Office of the Attorney-General acknowledged that there appears doubt over their ages (as asserted by an interpretation from a wrist-bone scan), and that there appears considerable evidence to support they are minors – and hence they are going home - well unfortunately only three more children at this time - it's been an exhaustive struggle to free these children however the struggle continues for those that remain unjustly incarcerated.
Ali Jasmin, who was born in 1996 has been released, and word is that Hadi Kurniawan who was born in 1995, may also finally be released and therefore both on their way home – at long last.
The Australian government and its agencies, including the Office of the Foreign Minister and the Office of the Attorney-General, have degenerated to pathos, to the keystone, to the ludicrous. The Act under which perceived “people smugglers” are defined and charged does not include a capacity for charges being laid against minors and therefore Australia’s official policy is that children are returned to Indonesia – the policy stipulates that if there is any doubt whatsoever in that someone may be a minor then the government shall err on the side of caution and therefore return them to Indonesia – this has been publicly articulated by the Offices of the Attorney-General and the Foreign Minister, the incumbent and their immediate predecessors - however the policy – the official position - has been contravened again and again and again.
After three years of exhaustive campaigns from human rights advocates – ordinary Australian citizens without the resources of the Australian government, the Australian criminal justice system, the Australian Federal Police and of the Australian Security Intelligence Operations – Ali Jasmin has been released. The three boys released had reached the end of their non-parole periods, such was the length of their sentence and substantive teenage years, formative years spent in Australian adult prisons, which I have often written about as failed systems which enshrine criminality and give rise to re-offending, various recidivism and the breaking of the human spirit.
Their sentences were five years with a three year non-parole period.
On July 20 2011, face to face I put it straight to the Prime Minister of Australia, Julia Gillard, “Julia, you must be aware that you are the Prime Minister of a country that has incarcerated Indonesian children in our adult prisons, at least 70 children – 13, 14, 15, 16 years old. They need to be released en masse and in line with the policy in place requisite that we err on the side of caution in terms of any doubt over their age. You need to implement appropriate and adequate age-determination protocols and something towards this must be tabled immediately, you cannot rely on a discredited and non-failsafe bone-density scan, and you must maintain Consular protocols with Indonesian authorities.”
The Prime Minister, frazzled by what I put to her – appearing to be intimidated by a scandal-in-waiting - merely thanked me for this information however what has continued to occur indicates that my words to her fell on deaf ears.
I’ve met these children in Immigration detention centres and in adult prisons and it has always been obvious me to and similarly so to other advocates, and I can assure you just as obvious to prison officials, prison support officers, prison guards and prison superintendents that these are just children.
One vital source of crucial information to me in trying to help me along in the campaign to have these children released from adult prisons is actually a prison superintendent who I cannot name however this superintendent is disgusted that children are in adult prisons however the superintendent argued his/her limitations in what can be done from within 'the system' – as the internal pressures to push to remedy these wrongs have been overwhelmed by the Commonwealth – not even State ministers with the portfolio of Corrective Services believe it is within their jurisdiction or brief to release these children or to even investigate – now of course in the pursuit of doing what is right I do not buy this, the moral compass should come first – however the argument is that these children are Commonwealth prisoners and therefore States have no or little jurisdiction – hogwash.
In order to get some justice we have worked ourselves to the bone in underwriting news media all over the country and sadly it has depended on the through-care journalism of the Australian Broadcasting Commission (ABC), seasoned newspaper journalists and others to keep this phenomenal breach of human rights in the light of day. Finally, we were helped along when after meeting with Senators Lee Rhiannon and Sarah Hanson-Young (in October 2011) we brought them to the fore in finally speaking up not just in public however in Senate Estimates and in the Australian Senate of the children who languish in Australian adult prisons. Myself, Indonesian human rights advocate Eko Waluyo and solicitor Edwina Lloyd coordinated forums in Sydney in October last year to keep on pushing for changes and to continue to highlight the plight of these children who at the time may have reached 100 within Australian custodial systems – and this fact, the statistic, was presented to UNICEF in Geneva at the time. It’s as if we, and others, had to batter the government, by various exposure and shaming, into doing what is right. There is still some way to go.
Officially, with this most recent release of the three children, there are 22 age disputes remaining – they are the ones that have been raised with the Office of the Attorney-General predominately through individual advocates and majorly by the Human Rights Unit of the Australian Human Rights Commission (AHRC). However, I will argue that there are children in Australian adult prisons who are unaware of their rights in being able to make a submission – what needs to happen is a review of all Indonesian prisoners – convicted and those on remand – with for instance the AHRC and the Indonesian Consular officials involved.
If the rule of law is to be circumvented as has been with the government’s persistent contravention of their own policy in failing to return children home to Indonesia, or those whose “age is in dispute”, and as obviously continues to be the case in Australia – with the horrific conundrum of people who are minors being presented to Australian Courts as ‘age unknown’ – then the Commonwealth as long as it wants to persist with making villains out of people who assist in the safe passage of Asylum Seekers, must implement appropriate and adequate age-determination protocols.
When Ali Jasmin was interviewed by the Department of Immigration the interviewing officer thought that he “was about 14”. So what happened from there?
For both Ali Jasmin and Hadi Kurniawan Indonesian birth certificates and Indonesian National Police Clearances were produced proving they were minors. So what happened from there? Incredibly, in many instances, not just with Ali and Hadi, the documents were not tabled to the Courts and others argued that the Indonesian criteria required to assemble these documents is not equivalent to Australian criteria and therefore they would not be admissible as evidence to Australian magistrates - their proof of age was not proof of age! – their birth certificates! This is cultural imperialism and utter discrimination for Australia to be telling Indonesia how to go about assembling criteria to prove dates of birth – however within this vacuum of inhumanity have been caught these children.
As a PhD researcher in Australian deaths in custody, and Australia with one of the world’s worst prison deaths and prison suicide records, I have often been haunted by the prospect of a child dying in an Australian custodial jurisdiction.
Australian Federal Police (AFP) were a source of information to me, and they said they did not want to be leading children into adult jurisdictions and did seem more concerned than all the other folk of various institutions of this nation which I went to – however the AFP did not publicly stand up to the Commonwealth government albeit they were the first to speak to the truth about the extensiveness of the numbers of those incarcerated – in May of last year they affirmed more than 60 “age-disputes”. An officer from within the AFP said to me their hands were tied by the existing protocols and they had to accept the results from the bone-density tests which a radiologist interpreted. Hence boys like Ali Jasmin and Hadi Kurniawan were remanded to HAKEA prison – Hadi is now convicted, as was Ali, and is serving his sentence at Albany Regional Prison – as was Ali - and both were located for work shifts in the kitchens and laundries alongside alleged sex offenders and paedophiles. After contacting the prison superintendents and with thanks to various news media in highlighting the predicament and potential risks, the children were removed to protected units and were often escorted by prison support officers.
Ali and Hadi upon conviction were removed from Perth’s HAKEA prison, which is predominately a remand facility – 85% remand - however to Albany Regional Prison, more than 400km south of Perth and away from the few support folk they had, like myself and the Indonesian Consulate - they needed their support folk, so I believe.
Ali Jasmin said that he is no longer scared, “They have done everything to me now – there is nothing left to be scared of.” Hadi Kurniawan said to me, “I am scared of being in jail but I have got used to it, and I have no choice but to just try my best and wait, and to make friends in here, and to do courses, to learn English better.”
When Ali arrived to our shores he was 13 years old, when he was arrested he was 13 years old. When he was convicted he was 14 years of age and he is now being released just shy of 16 years of age. When Hadi reached Australian shores he was shy of 15 years of age. When he was remanded he was 15 years old, and when he was finally convicted he was sixteen years old. He has just turned 17 while in Albany Regional Prison.
Both Ali and Hadi belong to Indonesia’s abject and acute poverty, and at times found themselves within destitute lives and in various toils most Australians cannot imagine – they committed no crimes except only when they were told so by Australian authorities. However whatever the Australian authorities choose to consider as their legal view of people like Ali and Hadi in assisting Asylum Seekers with safe passage they had no right to dismiss the documents produced on behalf of Ali and Hadi in relation to date of birth. The Department of Immigration Detention, the Australian Federal Police, the Commonwealth Department of Prosecutions and the Office of the Attorney-General are guilty of not only cultural imperialism and racism however they are evidently guilty of gross misconduct, breaches of law in refusing to accept these documents and arguing merely “that we do not believe the Indonesian authorities.”
The office of the Commonwealth Director of Public Prosecutions wrote to Ali Jasmin’s lawyer, “In respect of the birth certificate we have received from DIAC, which purports to relate to your client, whilst it is admitted that the birth certificate was provided by the Indonesian Consulate, it is denied that the document was created prior to the offence being committed. The prosecution also disputes that the birth certificate is admissible in its present form without calling proper… evidence establishing what is in the circumstances as to how it came into being. I request that you please advise whether you will be adducing any evidence at the age-determination hearing other than the birth certificate at the age-determination hearing.”
Once again what happened to the Commonwealth’s policy to send folk home whose ages were in dispute? – in erring on the side of caution so as not to risk incarcerating children in adult jurisdictions?
Three minors are being released after a review by the Office of the Federal Attorney-General, however there are 22 other cases before the Office, and Nicola Roxon has restricted her public comments in terms of the reasons for the release of the three children. “Further information has raised sufficient doubt that these three individuals may have been minors at the time of the offence, which warrants granting them early release on licence,” said Mrs Roxon.
“This is not a pardon. These three individuals crewed people-smuggling vessels that came to Australia, all three pleaded guilty to that, and they were convicted of that offence.”
My witness to how cases have been pushed through the Courts and how these children were sold-out is very different to what Mrs Roxon is claiming to be the case here.
“This is a decision to give these three individuals the benefit of the doubt about their age when intercepted, based on further information now available,” said Mrs Roxon.
Not only were they children at the time they still remain children even after the three year non-parole period.
The parents and siblings of these children wait for them in their impoverished Indonesian villages. The parents and siblings of at least a score of children, and possibly two score, also wait in their impoverished Indonesian villages for their release - hopefully it will not take months and years.
INDONESIAN CHILDREN AS YOUNG AS 13 abused, traumatised in Australian adult prisons
28.11.2011 - 10:16.
by Gerry Georgatos It is indeed now common knowledge that Australian adult prisons are incarcerating children as young as 13. The human rights struggle to free these children from our adult prisons has been an arduous one, with the major obstacle the Australian government and the horrific prejudices and stereotypes they have shoved down throats so as to perceptually modify views. Many have now been freed, some brutally traumatised, one sexually abused, all of them losing some of the form and content of their youth to an unwarranted prison experience. The struggle for their freedom and for the changing of laws and ways on the Australian landscape has now garnered the support of a swathe of lawyers - who advocate the rights of these children, of the Australian Human Rights Commission, of the Australian Medical Association, of the Australian Lawyers Alliance, of UNICEF and of Greens Senators.
Related: Christmas at home for Bali boy however Christmas for many Indonesian children will be in Australian adult prisons -- Campaign Facebook page
Prime Minister Julia Gillard and Foreign Minister Kevin Rudd were concerned about the rights of a 14-year-old Australian child who was arrested by entrapment for possession of marijuana in Bali. However, neither demonstrated the moral leadership required to represent the rights of 100 Indonesian children who for far too long languished, either as sentenced or on remand, in Australian adult prisons. The child held before the Balinese criminal justice system is not in an Indonesian adult prison and was in custody within the appropriate jurisdiction and has now been convicted to a two month sentence as a juvenile.
This Australian child will be spending Christmas with his family in Australia while scores of impoverished Indonesian children will languish in the cold dank cells and concrete confines of Australian adult prisons on that very same day.
On July 20 I spoke to Prime Minister Julia Gillard about the thereabouts 100 Indonesian children languishing in Australian adult prisons. They range in age from 13 to 17 years. It has been a painstaking journey to have some of them released – via court proceedings and by behind the scenes efforts. I contacted the Office of Foreign Minister Kevin Rudd and he promised he would assist. Like Ms Gillard, Mr Rudd delivered less than nothing.
Early last year, during an official visit, invited by a prison chaplain to HAKEA prison I unexpectedly met 30 Indonesian fisher-people who had been sentenced for fishing in excised waters. I was stunned by how young some of them appeared and hence started to ask questions. In January, I visited the Perth Airport Immigration Detention Centre, alongside refugee advocate Victoria Martin-Iverson. We met an Indonesian youth who we both spoke to, and who told us he had been a cook on a boat assisting in the safe passage of Asylum Seekers to our shores. While visiting HAKEA prison in February I was stunned to learn that this youth had been arrested and charged as a perceived people smuggler and remanded to HAKEA. This couldn’t be right - HAKEA is an adult prison. I organised to meet with him, and I did.
On the morning of the visit, for the first time in seven years of visiting prison folk I, and a companion, Nikola Leka, were pulled up by security on the instructions of the Justice Intelligence Unit and interrogated as to why I wanted to visit this youth. We did manage to see him for an hour and hence he confirmed to us that he was born in 1995 – and this is in line with the Indonesian National Police clearance that was later secured on his behalf - however he continues to languish in a West Australian regional prison.
I contacted every relevant authority in Australia and the Indonesian Embassy in Canberra and the Consulate in Perth. Every Australian authority shut up shop and passed the buck. It took much effort to get the news media involved because they wanted lawyers representing the cooks and deckhands to speak up - at that time the Australian landscape did not support this. The producers of one major news program said, “Gerry, we can’t do a story on these kids, they’re people smugglers and Australians see people smugglers as evil – it’ll affect our ratings.” Most lawyers representing these youths, funded by Legal Aid, were under representing them and hence railroading them to prison sentences in tune with the political landscape manifest by the immoral leadership of Australian government(s) selling the ‘people smugglers business model’.
The ability to discover the truth is outstripped by the ability to manifest deceit.
I have sat through a number of court proceedings and have seen first-hand the under representation - It is beyond disgraceful - it is criminal. I have listened to numerous stories from those languishing in our prisons about having no contact with their appointed lawyers and I have heard from some they had been advised to plead guilty. Working hard to get lawyers to better argue on behalf of their clients was foremost. There are a number of worthy solicitors and barristers who have done the job, and especially in recent times – the political landscape has been changing and more and more lawyers are better representing perceived people smugglers and the age-disputes. Terry Fisher, representing at this time 22 perceived people smugglers, leads the way, and David Svoboda, Mark Plunkett, Edwina Lloyd and several others have ensured the liberty of the children they represented. What these lawyers have done, and in travelling to Indonesia to secure court admissible evidence to displace the presumption of evidence of age from the discredited wrist bone ‘age’ scan, has exposed the failings of our intertwined criminal justice and political systems.
The news media was important – and it took a couple of months to win them over, and their chiefs of staff – however The West Australian reporter Jane Hammond finally got a significant April 6 article in The West Australian about the predicament of the child I had met in HAKEA prison. For the next couple of months doors shut and bureaucrats did not know how to handle the potential political fall-out fearing a scandal-in-waiting when instead they should have been more concerned about ensuring that children were not in adult prisons - you'd think they'd err on the side of caution. Not one politician I went to was prepared to demonstrate the political leadership required – this includes The Australian Greens, and I am not alone here - it is a view publicly shared by barristers such as Mark Plunkett. The next important news media exposure came when the former chief-of-staff of The AGE newspaper Lindsay Murdoch took up the clarion call, and in July wrote one article after another, syndicated across the country. Then the West Australian’s senior reporter Steve Pennells visited Indonesia to find the mother of one of the children in our adult prisons, and this finished on the front page. Since then one reporter after another has a run a story on the plight of these children and of the discredited wrist bone scan which the Australian Federal Police (AFP) had been using for age assessment, which in the United Kingdom, in terms of assessing age, is unlawful – the test is not failsafe in determining age, and is predominately about measuring skeletal fissures. Paediatricians, and major medical bodies, and the President of the Australian Medical Association, Steve Hambleton, have slammed the test.
On July 20 I organised to be at an event so as to meet Prime Minister Julia Gillard – and I did. I spoke to her about the fact that there are Indonesian children in adult prisons, 70 having been confirmed at the time by the AFP as ‘age-disputes’. I asked her to expedite their release into an appropriate jurisdiction and preferably into the care of the Indonesian consulate. I asked her to implement appropriate age-determination protocols that did not misuse a non-failsafe discredited wrist bone scan to determine age. She froze, as if it appeared there was another scandal-in-waiting. Subsequently, Labor Party insiders have told me that the Prime Minister does not want her government to admit any prior knowledge or complicity that can be used against them, and instead has left the plight of these children to legal efforts – however not all of them have legal representation and many of them are sentenced. Federal Minister for Justice, Brendan O'Connor said there will be no review of any age-dispute of those already sentenced and it is up to them to secure legal representation to prove their age through the Australian justice system. In effect to protect the Australian Labor Party Mr O'Connor is indeed prepared to accept children in Australian adult prisons - shattering Australia's party to the Convention on the Rights of the Child. At this time there is a submission to the United Nations and to UNICEF portraying Australia's dereliction of its party to the Convention on the Rights of the Child.
Let me remind that the children who were cooks and deckhands on the boats of Asylum Seekers to our shores are not the only children in our adult prisons. There are those who most have forgotten – the poor fisher-people sentenced for fishing in excised waters. Unfortunately, the terms of reference of the Australian Human Rights Commission (AHRC) national review on the Indonesian children do not include these other Indonesian children – more on this a little further on.
In late July the government promised it would do much more - however it came back with nothing more – except that it added a dental scan to compound the problems from the wrist bone scan – neither is failsafe in terms of assessing age. Why not work with the relevant authorities in Indonesia or with the Consulates? Those children released thus far are as a result of exhausting behind the scenes campaigning, with charges withdrawn by the Commonwealth Department of Public Prosecutors. 34 have had charges withdrawn - 8 released by pressure through the Courts. However, far too many children continued to languish – so in August I organised with Sydney Indonesian human rights advocate, Eko Waluyo and Sydney lawyer, Edwina Lloyd for the coordination of a Public Forum on the plight of the Indonesian children. This was attended by 70 people and including the Human Rights Unit of the AHRC. The AHRC got involved and began to aggregate information and in time presented a number of cases to the Attorney-General, Robert McClelland to review – at least 18 cases.
However, as the news media dropped off the plight of these children and there appeared a vacuum of inhumanity in that government had stopped the wheels of justice, in that they were not prepared to amend age determination protocols nor initiate any review, nor any Senator was prepared to ask questions in the Australian Senate, Eko Waluyo, Edwina Lloyd and myself coordinated three public forums during October in Sydney on the ongoing plight of these children, and of Australia's flagrant abuse of children. The forums were held at the University of New South Wales Law School, the University of Sydney and the University of Technology Sydney. Due to these forums a swathe of news media highlighted the plight of these children, and in particular the ABC provided the through-care journalism the children needed. The AHRC has now called for the national review and inquiry and this is pivotal in unfolding justice and remedy.
(From the AHRC: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children.
We would like to inform you that the President of the Australian Human Rights Commission, Catherine Branson QC, is conducting an inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children. The majority of these individuals are Indonesian nationals who have worked as crew on boats bringing asylum seekers to Australia, and who have subsequently been investigated for people smuggling offences. As you are aware, the Commission has serious concerns that errors in age determination procedures may have resulted in some children spending long periods of time detained in adult correctional facilities. The inquiry will consider all cases where age has been in dispute since September 2008. The terms of reference for the Inquiry can be found at the Inquiry website at www.humanrights.gov.au/ageassessment/. A discussion paper outlining the major issues of concern to the Commission will soon be published on this website.
Public submissions to this inquiry are welcome. The Commission is also able to receive submissions in confidence. Submissions addressing the terms of reference are due on: Friday 3 February 2012. Submissions and other enquiries may be sent to the Commission at the following address: firstname.lastname@example.org.)
On October 15 I met with Australian Greens Senators Sarah Hansen-Young and Lee Rhiannon and hence the next most important step took place - I provided them with questions for the Senate Estimates and the Senate, and Senator Lee Rhiannon in the Senate Estimates asked the first of a set of questions of the ASIO Chief about Indonesian children in our prisons. Senator Hansen-Young has continued the questions and this has dropped an onus of accountability on various agencies - AFP, DIAC, the Office of the Prime Minister and the Commonwealth Department of Public Prosecutors.
Unless, we amend the age determination protocols we risk much of the same. Unless we amend the various 'people smuggling legislation' we risk incarcerating peoples who are not organisers and who in terms of international laws and conventions have committed no crime.
The mantra of “breaking the people smugglers’ business model” has caused much damage and perceptually modified public views. Is “people smuggling” a reality or is it a myth, and is the assisting in the passage of an asylum seeker immoral and criminal? I was stunned when a GetUP! campaign against the Malaysian option quoted, “it’s understandable that the Minister cannot offer a blanket exemption to any class of asylum seekers, for fear that people smugglers will exploit it to their advantage.” There are many asylum seekers who cannot find safe passage from persecution and oppression without the assistance of others. I do not question that there may be some who have profiteered in assisting asylum seekers, however is this a crime? Migration agents get paid for their services. Who doesn’t? Let us remind ourselves that much of what is paid to so-called people smugglers is also spent on ensuring their safe passage.
If Prime Minister Gillard and Immigration Minister Chris Bowen want to break what they perceive as the people smugglers’ business model they should listen to the Director of Refugee and Asylum Law at the University of Michigan, James Hathaway, “Canada and other developed countries created the market on which smugglers depend by erecting migration walls around their territories. The more difficult it is to get across a border to safety on one’s own, the more sensible it is to hire a smuggler to navigate the barriers to entry. Smugglers are thus the critical bridge to get at-risk people to safety. Which one of us, if confronted with a desperate need to flee but facing seemingly impossible barriers, would not seek out a smuggler to assist us?”
Perceived people smugglers are actually people who save lives and if we could remove ourselves from the racism and xenophobia we would appreciate them and their brave daring as we do Oskar Schindler and Nancy Wake. Humanity has a history of heroes who have smuggled people to safety and to destinations throughout the world where human advancement can prosper. Oskar Schindler took monies to pay monies to help thousands of individuals to freedom. Recent tributes revered the life of Australian Nancy Wake, a “people smuggler” who during German occupied Europe saved many lives.
Many people smugglers were asylum seekers and refugees and they understand the predicament of their peoples. Iraqi Ali Jenabi’s brother was killed by Saddam Hussein’s forces. He arrived in Indonesia penniless and to earn passage for his family to Australia, which included his mother, sisters, brothers and an uncle, he worked for perceived people smugglers. His family finally arrived in three separate boats. Ali Jenabi’s humanity continued and he has since helped many others seek passage, including those with no money. He is a hero to the Iraqi communities of Australia, but a perceived people smuggler to Prime Minister Gillard. He could face ten years jail.
Australia’s misrepresentation of those who assist asylum seekers in their safe passage and their labelling as people smugglers has now caught up young children, who were no more than cooks and deckhands on the boats lawfully seeking asylum to our shores. And again, let us not forget the fisher-people convicted for the miniscule crime for fishing in excised waters to feed their families. Some of them are children.
Lawyer, David Manne set a precedent by challenging the Australian government in the High Court over the lawfulness of the Malaysia option. At this time in the Victorian courts, and it may finish up in the High Court, lawyers are arguing that asylum seekers have a legal right to come to Australia and that perceived people smugglers have a legal right to assist them, and in fact they have never done anything unlawful. Indeed, paragraphs 232 and 233 of the Migration Act support this argument. A few years ago 27 legal experts explained to a Senate Estimates Inquiry that indeed there is nothing unlawful in assisting people with safe passage to foreign shores. The incarceration of people as “people smugglers” is unlawful, and the incarceration of Indonesian youth and children as cooks and deckhands is a human rights abuse. The incarceration of children in Australian adult prisons is beyond comprehensible.
If the Victorian courts uphold the arguments that there is no such thing as people smuggling per se in regards to the “business model” then this will have a wide reaching implication and may expedite the freedom of many. Australia would be best served by working with those humanitarians who risk their lives trying to help others to our shores, and by pulling down the migration walls and raising our humanitarian quota for refugees to, for instance, 50,000 and set an example world-wide.
There remain an affirmed 32 age disputes, 34 have been released - more major organisations are calling for their release and pushing for amendments to the existing laws, and some are calling for compensation and aid to the impoverished villages the children and youth came from - this would be neighbourly and in the common good. I believe there are still up to 100 children languishing, many who fearfully may have withdrawn their age dispute – one called me on October 28 to say he is 16 years old however does not want any more ‘authority’ in his life – and then there are others who never raised their age as an issue or who settled on an inaccurate date of birth either because of language barriers and a fear of authority and for other reasons few of us understand – and then there are those children who languish for far too long in Immigration Detention before being allowed to return home. Sadly, several young people on remand in our adult prisons said to me, “I am scared in prison but prison is better than Christmas Island (Detention Centre) and Darwin (NIDC) where we are treated and caged like animals, because here in prison we are treated better by the guards and there is more to do, like courses and learning, but here we have to be careful to stay away from some of the bad criminals.”
HADI KURNIAWAN – ONE OF 100 CHILDREN IN ADULT PRISONS
1 July 2011 - by Gerry Georgatos - An impoverished Indonesian mother, in front of an Australian journalist, lies on a cement floor clutching a photograph of her 16 year old son who is now in an Australian adult prison and whom she hasn't seen since he was fourteen. Abject and acute poverty ravages Indonesia, a country where only 10% of the population has a refrigerator, where most people do not have electricity let alone a television, where many people live half lives working in sulphur mines and where most folk will never rise out of the shanty towns and villages they are born to die in.
Human rights abuses and injustices should be criticised, at all times, however it is difficult for Australia to criticise foreign justice systems and practices when Australia is no better. Australia has incarcerated at least 60 Indonesian youths, and possibly over 100, in Australian adult prisons. The state of Western Australia bears the brunt with 29 affirmed age disputes and possibly many more. The youths we are describing are some of our world's most impoverished children who for as little as $6.80 provided assistance to Asylum Seekers. These children assisted as cooks and deckhands in the safe passage of Asylum Seekers to Australian shores.
Australia's prescribed policy is to return those cooks and deckhands to Indonesia who are 18 years of age and under, and to charge as perceived people smugglers with the utilisation of sections 232 and 233 of the Migration Act those who are 19 years and above. One can only be remanded to an Australian adult prison if they are at least 19 years of age. Unfortunately for these cooks and deckhands, the Australian Commonwealth of Public Prosecutors has not heeded what 27 legal experts put to a Senate Estimates Inquiry some years back, and that was those who assist as cooks and deckhands cannot be charged under these sections and that indeed they are not people smugglers. However Prime Minister Julia Gillard, with a complete disregard of the law and international covenants, has taken the lead from former Prime Minister John Howard in fabricating a 'people smuggler model' that victimises the world's most impoverished folk who from a humanitarian perspective are merely cooks and deckhands assisting in the passage of Asylum Seekers - in other words our governments will unlawfully go after anyone.
The youngest son, and seventh child, of this anguished mother is Hadi Kurniawan, who was born on April 5, 1995, and who has been remanded to the maximum correctional facility of HAKEA in WA since February. I met Hadi at the Perth Airport Detention Centre in January. With a fellow refugee advocate, Victoria Martin-Iverson, I had been visiting people detained at this facility when we came across Hadi, sitting nervously on a small lounge, alone, urgently puffing on a cigarette. To both of us he looked awfully young. We spoke to him for about five minutes.
I have been visiting prisons for some six years, usually at the invitation of a prison official to talk to our incarcerated souls about educational pathways. Early last year while on such a visit within the prison's educational facility I came across an English language class of thereabouts a score of young Indonesians. I walked in and spoke with them. I learned that they were fishermen who had been found guilty of 'people smuggling'. I was appalled to learn that they had been lumped with mandatory five year sentences, to be served at Albany prison, to which they would soon be transferred to. All of them had only cooked or served as deckhands. They did not know that in assisting in the safe passage of our Asylum Seekers that they were doing something deemed wrong by then Prime Minister Rudd, and similary by incumbent Prime Minister Gillard and Coalition leader Mr Abbott and unfortunately by a majority of Australians. I thought to myself that some of them looked fourteen and fifteen years of age however at that time I had an investiture of faith and goodwill in the Australian justice system in that they would have ascertained their date of birth. I was wrong, and I now look back to them and wonder how many of them, like Hadi, are children.
During one of my February visits to HAKEA I learned that Hadi had been arrested by the Australian Federal Police and was at HAKEA. I could not fathom how he could be any older than sixteen. I arranged to visit him on March 17. Accompanying me on that visit was Nikola Leka, of the Refugee Action Coalition Newcastle. I had made a morning visit to a Sinhalese person on remand at HAKEA, also on perceived people smuggling charges, and his story is another tragedy in itself. Nikola and I were to visit Hadi straight after. For the first and only time in six years of visiting prisoners, officially and socially, I was pulled aside by HAKEA security and questioned for ten minutes as to the purpose of our visit with Hadi. I was stunned, however I answered all questions honestly. The Security Official told me that the instruction had come 'from above' and not from HAKEA superintendents. Later I would learn that these instructions came from the Department of Correctional Services Security and from the Justice Intelligence Unit of the Ministry of Justice. We were allowed to proceed with the visit.
During the hour long visit Hadi told me that he was sixteen and that he had been in Australia since April 2010 when the boat of 30 Iraqi and Hazara Asylum Seekers waited at Ashmore Reef. He was barely fifteen at the time. The Royal Australian Navy took them to Christmas Island for a week before he was transferred to Darwin Immigration Centre, where he contracted Tuberculosis, however was detained for ten months till being flown to Perth, where I met him at the Airport Detention Centre, while he was being treated as an outpatient at Royal Perth Hospital.
The Australian Federal Police, guided by the Howard/Gillard 'people-smugglers model' wanted to charge him. They did not accept his date of birth, they did not notify Indonesian consular officials of his presence nor did they seek their assistance in determining Hadi's age, and they did not contact counterparts in Indonesia to affirm his age. Rather, they relied on a discredited 80-year-old medical procedure, a wrist-bone age scan, and a radiologist's interpretation, to insist on an age. This is part of the reason why there are possibly 100 of the world's most impoverished children in Australian adult prisons. Medical experts and other authorities the world over have slammed these tests, they are not fail-safe, and rather they are dodgy. They can be erroneous by five years and more! The criteria for determining age through these tests were originally aligned to well nourished American and Australian folk and not under nourished, and weathered Indonesian folk. The age test alleged that Hadi was born in 1991.
Hadi has never shifted from the claim that he was born in 1995. After he persistently affirmed to me that he was born in 1995, and I believed him wholeheartedly, even if I did not unequivocally know, I had a duty to disclose this to HAKEA authorities. The journey since has been one where we have had to grapple with a vacuum of inhumanity. Unbelievably, HAKEA Security blocked my visits, official and unofficial and not just to Hadi however to all prisoners. HAKEA Superintendents were horrified and reinstated my visiting rights, and I managed another visit with Hadi, however HAKEA Security blocked them again and instructed the Superintendents not to remove the 'block'. I went to every relevant authority while DCS Security claimed I was inadvertently flagged as part of an introduction of new protocols which have never been presented to me. They promised they would expedite the scrutiny however two weeks passed. In my belief, it was only when Jane Hammond, a journalist published an April 6 article in The West Australian about Hadi's plight that my visiting rights were reinstated. My visits were reinstated the same day! You don't get much out of parliamentarians, with their minimalist fodder, however it says it all when Federal Senator Louise Pratt wrote to me that she was appalled in that my visits were blocked and that she believed "it is political".
I could not leave this boy in an adult prison, a maximum security facility and to a pending five year sentence. Hadi told me he was 'scared' and told me he feared 'authority' and did not want to draw 'attention' to himself that would see him removed to another unit, away from his fellow Indonesians, or to another prison. He seemed to fear he would be removed from Unit 1 to either a Unit 4 or Unit 6. This theme of an excessive fear of authority has usurped the rights of Indonesians and Sinhalese who have been charged as perceived people smugglers, and it does not matter how many of us explain that they should not fear Australian authorities to the extent that they may fear Indonesian or Sri Lankan authorities.
Hadi told me he wanted to 'go to home'. In HAKEA Hadi was assigned to work in the laundry where traditionally those charged with sex offences and paedophilia work however he has since been relocated to kitchen work where he earns $30 per week and up to $48. I contacted the Indonesian Embassy in Canberra and they were quite concerned. Initially I worked with the Perth Indonesian Consulate, through the Vice Consul and they visited Hadi and they believed that he was born in 1995. I had the phone number of his older brother Heriyandi in Batam, Indonesia, and I had called him and Heriyandi, in his limited English, affirmed that Hadi was born in 1995. The Indonesian Consulate called the family and similarly gained this affirmation. In June, a barrister from Sydney, with whom I was liasing with would visit Hadi and similarly provide a transcript from his visit affirming his age and of other contact details to family in Indonesia. I went to every relevant authority, just about every relevant parliamentarian in this state and in Australia and none would adequately consider let alone represent Hadi's interests. No Australian parliamentarian or political leader would demonstrate the warranted moral leadership. I am appalled not only in the ALP and the Coalition and the Independents however and in the Greens.
I asked Hadi's Legal Aid lawyer to contact his family in Indonesia however he advised me that he was following Hadi's instructions and restricted comment to the argument of 'Privilege'. I spoke to the Commonwealth Prosecutor and described to her that the responsibility belonged to the Commonwealth to ascertain age beyond a reasonable doubt and to ensure they were presenting people before the appropriate jurisdictions. Silence.
Days turned into weeks, weeks into months, and Hadi, and others, continued to languish in adult prisons. I went to the state and federal governments and they said little and did nothing. I went to WA state Labor parliamentarians and they said to me to go the media. I went to federal Labor parliamentarians and they told me to go the Greens! I went to the federal Greens and as noted they did nothing. With the exception of WA Greens Alison Xamon asking several crafted questions in the state legislative assembly no parliamentarian demonstrated any moral leadership or other political conviction. None of the three major political parties were prepared to unveil Australia's racist layers and lead from the front. I have never been more disgusted by this exposition of immorality. How dare not a single Australian Senator, 76 of them, not raise a question about minors in adult prisons in the Senate? All three major political parties are more concerned about what the majority of the Australian population may perceive and therefore they are more concerned about 'votes' than they are in speaking the truth and in demonstrating the type of leadership that in effect would be educative and in part change public perceptions. This is not my experience alone, it is also the experience of barristers such as Mark Plunkett who defended the rights of one three Indonesian minors incarcerated at Brisbane's Arthur Gorrie Prison. Mark had to do as I did, he picked up the phone to Indonesia to begin the search for the truth. Thanks to Mark and his two colleagues the three boys, Ose Lani, Ako Lani and John Ndollu are now free. Queensland's Commonwealth prosecutors, without too much of an explanation, dropped the charges. This has set a precedent, and it is sad we have to rely on this precedent. I understand that the Commonwealth government wants these cases to quickly disappear so they are not exposed for their outrageous abuse and lies as the Coalition was with the Tampa lies. Gillard and Bowen, and the whole of the ALP, have not only breached Australia's commitment to the Convention on the Rights of the Child, they have shattered it.
At this time there is an Indonesian delegation in Australia meeting with relevant Australian authorities pushing not only for Hadi's release however for the immediate release of all those with their age in question and for the implementation of appropriate age determination protocols and the commonsensical courtesty for Indonesian consular officials to be notified of the presence of their nationals on Australian territory. The Australian Federal Police advised me that no treaty exists between Australia and Indonesia that requires either country to notify the other of the presence of their nationals on each others shores. Such a treaty does exist between Australia and China, however do we require treaties to ensure this courtesy and the protection of a person's rights?
I made certain that Indonesian media became aware of Australia's human rights abuses towards Indonesian children - I contacted the Jakarta Post, Radio Elshinta, and Indonesian human rights advocates, and I was contacted by Eko Waluyo, and Indonesian human rights activist in Sydney who did likewise and more and contacted the Indonesian Foreign Affairs Ministry.
When all appeared an uphill struggle, when every door shut I had no choice however but to risk all my relationships with journalists and editors. Along came Lindsay Murdoch, of The Age, and he highlighted the efforts of Mark Plunkett and then myself, and if it wasn't for Lindsay we would still be pushing the barrow up a steep uphill. Lindsay contacted Hadi's family through correspondents in Jakarta and for two weeks published article after article syndicated across the country. Subsequently I pushed West Australian media to pick up the baton and lead the way and for a couple of weeks they did. Thanks to The West Australian's Steve Pennells we were able to go further, and he flew to Indonesia to meet members of the family and secure hard copy evidence of Hadi's age. Indonesia's population is primarily poor and most of them do not have paperwork or any knowledge of how to access it. Steve met Hadi's brother Heriyandi and Hadi's mother Yusniar and eventually secured a police clearance for Hadi that included Hadi's date of birth. Steve applied for what is known as the 'family card' which further proves Hadi's age and we are waiting. Most folk in Indonesia do not have birth certificates however for purposes of the population census they are on a register and hence the family card and carte lingue. I had already known that Hadi had graduated Junior High, the equivalent of our Year 9, in 2009, which would have put him at 14 years of age. Hadi did not continue on with education, he was too poor and moved to Java to live a with a paternal relative while seeking work in construction. Three months later when the relative died Hadi had nowhere to go, and before he knew it he was on a boat as a cook keeping Asylum Seekers safe from dehydration and starvation during their passage to Australia. His family did not know he was on a boat to Australia and for more than a year they did not know what had happened to him. They feared the worst. They first heard from Hadi after he was arrested, charged and sent to HAKEA. Hadi worries about his mother and tries to assure his mum that he is looked after in prison. Steve Pennells would break a significant whole page story in the West Australian, Monday June 27, with a large photo of Hadi's mother holding her son's photo on page 3, and Hadi on the front page. On the Friday, concerned for Hadi's state of mind, I risked contacting HAKEA's superintendents, who for whatever reasons I reasonably trusted, and let them know on that on Monday Hadi would see his mother's photo in the newspaper and on television andthat they should consider a prison support officer or counsellor for Hadi. They did.
As the Australian Prime Minister lacks the morality to en masse free these children, as neither do state and territory premiers and chiefs, it is still up to lawyers to ensure the release of these youths as was the case in Brisbane. We are waiting for Hadi's lawyer to initiate urgent bail proceedings - I have forwarded him the police clearance and a letter written by Hadi in Indonesian in front of the barrister from Sydney who visited Hadi while in Perth, and which describes Hadi's insistence in that he is sixteen and who subsequently describes the fears he has of repercussions. We expect that if there is an application for bail that the prosecution will do as occurred with the Brisbane three, charges will be dropped. This is the only way - Recently I managed to meet in person Julia Gillard, and as we shook hands, and as her smile went cold and as she was visually shaken, I reminded her that she is the Prime Minister of a country with 14, 15, 16, 17 years old in adult prisons and that she needs to remedy this - she hasn't. Chris Bowen has only recently begun to admit that there are minors in our prisons - "Yeah, look, the issue of minor crew - this is people who've been crew on boats that have come to Australia in an unauthorised fashion that are minors - is a difficult one. The Attorney-General and I have been working on it, we've also been talking to the Indonesian Government about it. It is obviously important that the law be able to take its place, but there are special circumstances when it comes to minors. I'm not going to comment on individual court cases - that would be inappropriate - other than to say the Attorney-General and I are very aware and alive to the complexities of the issue and we are continuing to progress how those issues should be dealt with." What do you say to that? In WA, I received a response from the state minister for Corrective Services, Terry Redman, who claims that he has to accept the evidence provided by the AFP, and that therefore there are no minors in our prisons! Not Gillard, Bowen or Redman understand that politics is a calling.
Hadi, Ako, Ose and John have become the young faces of Australia's most recent human rights abuse, its abuse of children - however we must remind ourselves there are at least 60 to 70 others and possibly more than 100 we need to shine the light upon and free. A couple of years ago a fourteen year Indonesian boy served twelve months in an Australian adult prison and was released only when the Magistrate sighted his certified Indonesian birth certificate, and currently we have several more cases before the courts, in Sydney, as Bankstown Prison has minors, and in Melbourne, and in Perth a writ, habeas corpus has been lodged in the Supreme Court in the case of Ali Jasmin whose lawyer is requiring the Commonwealth undertake the onus of the burden of proof in determining age beyond a reasonable doubt. This is what all lawyers should have done. Most of those charged are essentially railroaded by their lawyers and the justice system into prison sentences - they are rarely visited if ever, many see their lawyer for the first time in Court, and interpreters do the bare minimum. Legal Aid needs to stop representing these victims and admit that they do not have the resources to ensure these people are properly and honestly represented.
Many have contributed to Australia's present abuse of these children - the relevant authorities that could not pick up a phone and call either the Indonesian consulate or families in Indonesia, the lawyers who likewise could not pick up the phone and who under-represented their 'clients', the political parties and their parliamentarians who cowered rather than do their duty, and the Prime Minister and Minister for Immigration who are leaving racist legacies.
ABC24 - Corby, Carr, the children
Australia shatters its party on the Conventions of the Rights of the Childhttp://indymedia.org.au/2011/11/27/australia-shatters-its-party-on-the-c...
Greens to propose Bill to ban use of x-rays in determining age http://www.smh.com.au/national/greens-bill-bans-xrays-of-people-smuggler...
Treatment of Indonesian children to be investigated http://www.smh.com.au/national/treatment-of-indonesian-children-to-be-in...
Inquiry by the Australian Human Rights Commission launches inquiry http://www.humanrights.gov.au/ageassessment/
Edwina Lloyd's struggle to free an intellectually impaired child an adult prison http://www.smh.com.au/national/disabled-boy-freed-from-adult-jail-201111...
Gerry Georgatos on THE DRUM ABC - October 18 http://www.youtube.com/watch?v=HOGXgqgpH24
100 Indonesian boys in Australian adult prisons http://news.ninemsn.com.au/national/8361190/100-indonesian-boys-in-austr...
Edwina Lloyd on Radio National Australia http://www.radioaustralia.net.au/connectasia/stories/201110/s3341629.htm
Gerry Georgatos on Radio ABC Australia http://blogs.radioaustralia.net.au/english/2011/asia/australia-accused-o...
Too young to be in gaol http://www.thewire.org.au/storyDetail.aspx?ID=8688
Hadi Kurniawan - one of 100 children in Australian adult prisons http://indymedia.org.au/2011/07/09/hadi-kurniawan-one-of-100-children-in...
Prime Minister Julia Gillard http://www.brisbanetimes.com.au/national/gillard-criticised-for-wrist-xr...
Gillard upbeat http://www.skynews.com.au/topstories/article.aspx?id=687436&vId=2862236&...
Campaign Links Free the Impoverished Children in Australian Adult Prisons Facebook Page
An impoverished Indonesian mother, in front of an Australian journalist, lies on a cement floor clutching a photograph of her 16-year-old son who is now in an Australian adult prison and whom she hasn't seen since he was 14
An Indonesian youth, Hadi Kurniawan, imprisoned on charges of people-smuggling, has drawn attention to the Australian government and legal system’s brazen disregard for human rights. Kurniawan’s case came to light almost by accident. Two refugee rights activists, Gerry Georgatos and Victoria Martin-Iverson, met Kurniawan at the Perth Immigration Detention Centre in January. They had no idea at that time that he would be sent to prison
An alleged people smuggler, who claims to be a child despite being held in an adult prison, has written of his fears at being separated from his countrymen and taken to a juvenile facility
There may be up to 100 impoverished Indonesian children in Australian adult prisons - we know for a fact the brunt of these numbers are in Western Australian prisons
The boy has been in custody in WA now for more than a year and in Hakea prison, alongside convicted killers and sex offenders, for four months. But it took The West Australian just two days last week to get hold of a copy of a police clearance certificate issued in Hadi’s name which lists his birth date as April 5, 1995. The newspaper and the Indonesian consulate in Perth are now trying to verify the document and get hold of a second which would prove his age conclusively
Please, we need the news media, with its capacity for throughcare, to follow this story and ensure that where it should be the case that people are freed from our Adult Prisons - without the news media we will struggle
It is not appropriate Hadi Kurnawian, born April 5, 1995 continues to languish in Hakea Correction Facility
Anger over Indonesian boy, 16, 'held in WA adult prison with sex offenders'
Refugee advocate Gerry Georgatos, who has pushed Hadi's case since meeting him in Hakea, called on State and Federal governments to release him immediately
There are near one hundred of the world’s most impoverished children incarcerated, whether on remand or sentenced, in Australian adult prisons. The biggest numbers are in West Australian adult prisons
The ages of these children are disputed by the Australian Federal Police and, in turn, by the Commonwealth; but their arguments are based solely on the results of wrist-bone age-scans
HADI KURNIAWAN - one of 100 children in Australian adult prisons.
Hadi Kurnawian - 16 year old still in an Australian adult prison
Australia shatters its party on the Convention on the Rights of the Child
Children in adult prisons STILL LANGUISH - Justice delayed is justice denied
HRA media release: THE FORGOTTEN CHILDREN - up to 100 of the world's most impoverished children - WHERE IS HADI?
HRA MEDIA RELEASE: We have called for the release of HADI, and other children. We have called upon the AFP to lead the way, we have called upon the Australian Greens Senators and the Australian Human Rights Commission
Locking up Indonesian children in adult Australian jails: Mandatory detention claims more victims
Free the Indonesian children from Australian prisons - September 6, 2011
WA Minister ADMITS MISLEADING Parliament - Australia lied to by Prime Minister Gillard - Minister Redman, Minister O'Brien, Premier Barnett, Minister Bowen, Minister O'Connor, Prime Minister Gillard MUST RESIGN IMMEDIATELY. Scandal-in-waiting.
Minister puts children last and they finish in adult jails
Gillard criticised for X-rays
Gillard doing nothing for the children