The Commonwealth Department of Public Prosecutors will no longer oppose Bail when Indonesian children dispute their age. The CDPP will not exclusively rely on the wrist bone scan to assess age. This is a positive step, and time in Immigration Detention will count as custodial (though I believe that in terms of the predicament of bail they should be in the care of the Indonesian Consulate(s).
We need a review of all the Indonesians in prisons, in terms of their age - there is one by AHCR underway - and there is the Senate Standing Legal and Constitutional Committee into the Fairness to Minors (Crimes Act) review however there are all the fisher-people doing time for fishing in excised waters and they are not part of the terms of reference of either of these. Gerry Georgatos.
From The Australian: New DPP policy gives Indonesian minors bail
by: Paul Maley, national security correspondent, From:The Australian, December 02, 2011 12:00AM
FEDERAL prosecutors will no longer oppose bail for accused Indonesian people-smugglers who claim to be underage, a move that has the potential to diffuse significant tension between Canberra and Jakarta.
In response to growing concerns about minors in jail, the Commonwealth Director of Public Prosecutions -- responsible for prosecuting the soaring number of Indonesian fishermen in custody -- has instituted a policy of not opposing bail where a defendant's age is in dispute.
The policy does not mean that the Indonesians, who are facing a mandatory jail term of five years, with a non-parole period of three, are released into the community, as they are unlawful entrants with no visa.
They are returned to immigration detention, avoiding situations where underage boys have been mistakenly incarcerated in maximum-security prisons.
It is understood time spent in detention is then deducted from their sentence, despite immigration detention being administrative, rather than custodial, incarceration.
Virtually all asylum boats arriving in Australia bring with them a handful of crewmen, invariably poor Indonesian fishermen with little or no understanding of the tough penalties awaiting.
According to officials at the Indonesian embassy, there are about 500 Indonesians in immigration detention or jail.
About 45 of them claim to be underage. Those who are found to be minors are not prosecuted.
But the main tool used to test that claim -- wrist X-rays -- has been criticised by medical experts as unreliable and there have been numerous cases of teenagers being freed from jails after their ages were definitively established.
As a further safeguard, Commonwealth Director of Public Prosecutions Chris Craigie will not authorise a prosecution against a people-smuggling suspect unless he is personally satisfied that the accused is at least 19 years old.
Nevertheless, the issue has prompted an inquiry by the Human Rights Commission.
Commission president Catherine Branson QC said she was concerned that the rights of children were being respected.
She said the commission would examine whether wrist X-rays -- which, under the Crimes Act, the Australian Federal Police are required to use -- should be given any legal weight at all, given the question mark over their accuracy.
"One thing we do know is that it's now accepted that significant mistakes have been made," Ms Branson said.
"There are young men now accepted to have been children, in some cases as young as 14, at the time of the alleged offence."
Ms Branson said she was aware of the new prosecution policy.
However, she questioned whether the change was widely known among the lawyers charged with defending young Indonesians, meaning they might not automatically apply for bail.