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The political ships that pass in the night

Last gasps for a cruel and unjust policy?

Hundreds of broke sailors jailed without charges amidst the surrounding growing furore

Image: thanks to Peter Nicholson Cartoons

A tiny insertion in an ABC Lateline report of August 29, 2012 was the only announcement.

No other Australian media outlets paid any attention to the Lateline note.

Nevertheless, Lateline's confirmation that a directive had been issued by Australia's first female Attorney-General Nicola Roxon had enormous significance. Lateline's anchor Tony Jones stated:

"Attorney-General Nicola Roxon has issued a directive that prosecutions against 132 Indonesian boat crew facing aggravated people smuggling charges be discontinued. The Indonesian crew, who arrive in the future, won't be charged with aggravated people smuggling, which carries a mandatory five-year jail sentence, unless there's evidence they helped plan the journey or deaths occurred at sea." (source)

The former Howard government regarded asylum seekers arriving by boat primarily as 'illegal arrivals', and when a number of Chinese boats brought smuggled migrants in the lead-up to the 2000 Olympic Games, sentencing of 'smugglers' including all crew became the hallmark of 'controlling the border' and sentencing increased from two to a 20 years maximum with a minimum of fuss. During 2001 a mandatory imprisonment term for all became Howard's political extreme harshness insistence through the courts.

However, problems and criticisms emerged almost immediately in the courts. In 2001 Darwin duty lawyer Jonathon Hunyor argued that "people smugglers who assist asylum seekers to arrive in Australia may not be people smugglers at all" [1]. As time went on and more and more crew, usually poor, uninformed and desparate Indonesian men - more often underage boys than not - were apprehended and jailed, the malpractice grew and grew to the dismay of defence lawyers, judges and magistrates alike.

[1] Jonathon Hunyor. (2001). Don't jail the ferryman: the sentencing of Indonesian
'people movers'
. Alternative Law Journal, vol 26 issue 5, pp. 223-228.

What's on this page

This page brings together many media items about the circumstances of the Indonesian boat crew. These items are listed in our usual "Quick Links" hyperlinks below. However, the page first lists three news items about the prospect that the Australian government may be subject to a massive lawsuit on behalf of the hundreds of young men, jailed on arrival as boat skippers, but not charged.

Related pages

11 March 2012: The EVIL travel brokers in Indonesia - Media reports about asylum seeker travel brokers. In Australia, the boats simply bring asylum seekers to the region of Australia's "refugee prison" on Christmas Island so they can (as Article 31 of the United Nations Refugee Convention states) "present themselves without delay to the authorities and show good cause for their illegal entry or presence".

6 November 2011: Australia's extra-judicial jailing of Indonesian children - We avoid the Criminal Code, because that would prevent us from jailing children without charges; we use discredited wrist X-ray testing to determine their ages without getting results in due time; while this goes on, our Immigration Department cowboys collude with Australian Federal Police in order to jail more than a hundred kids in adult Australian prisons. And barely anyone stirs this hornet's nest of Australia's medieval lock-em-up mentality.

5 November 2011: We're terrified of the boat people - We're terrified of the boat people: Children and boys are depicted as smugglers in Australia's psychotic war against boat arrivals. This is a page containing a number of media reports about the fate of those who sail asylum seeker boats to our shore.

16 April 2011: Island boys and Indonesian smuggling laws - Why did Indonesia formulate their anti-people smuggling laws? A massive political campaign has long told Australians that people smugglers are evil, that they are the scum of the earth, that they run a vile industry. That campaign has run in tandem with one convincing us that those sailing to Australia are 'illegal immigrants', 'queue jumpers' or 'economic forumshoppers'.

Government faces asylum lawsuit

The Age
January 24, 2013
Michael Bachelard

Police and the federal government face a massive lawsuit for damages from up to 48 under-age asylum boat crew from Indonesia, some of whom say they were abused when locked up in adult prisons in Australia.

Sydney lawyer Penelope Purcell is working with Indonesian lawyers and human rights organisations to take statements from the young fishermen who say they were tricked into crewing asylum boats to Christmas Island.

Under harsh laws introduced by the Rudd government, many poor fishermen were given mandatory prison sentences of up to five years for ''aggravated people smuggling'', even though some were as young as 14.

They were jailed as adults after police used a discredited wrist X-ray procedure to say they were over 18.

Ms Purcell said the fishermen were often paid $50 to $100 by ringleaders and told they would be transporting animals between Indonesian islands.

Once the asylum seekers were put on board in the middle of the night, the crew were given a GPS device and pointed towards Christmas Island without being told it was illegal. The ringleaders then abandoned the boat.

Ms Purcell said their first contact after that was usually when Australian navy personnel boarded the boats.

''They were terrified. One of my clients said: 'The men got on in tiger stripes [camouflage]. They had guns. I did number one and number two.'''

Most of the youngsters were released in 2011 after the release of a damning Australian Human Rights Commission report.

Their cases won broad sympathy in Indonesia.

Lili Wahid, an MP and the younger sister of the former president Abdurrahman Wahid, said on Wednesday she would summon the Indonesian foreign minister before her parliamentary committee to explain.

''We understand that people smuggling is a big burden for Australia but it is unacceptable that they treated our children in such a way,'' Ms Wahid said.

''It seems the Australian government has realised their mistake in this case. But it is not enough. We must stop this case from happening again. It takes both governments to talk about it.

''Putting them in the same place with adult criminals have done extremely bad things for the children's psychology that cannot be repaired even by compensation,'' Ms Wahid said.

Ms Purcell said she could not predict how much compensation she would be seeking, saying it would depend on each case and the level of abuse suffered.

She is working on a no-win, no-fee basis.

Some of the crew had gone to prison, but others were in immigration detention for ''what we say was a disgraceful amount of time''.

The cases span Melbourne, Sydney, Brisbane, Perth and Adelaide.

An Indonesian-born lawyer, Lisa Hiariej, said the case could be filed as early as this month, and she was confident the Australian federal government would need to pay compensation.

Indonesian boat crew youths to sue over prison

Peter Alford, Jakarta correspondent
Additional reporting: Telly Nathalia, Lauren Wilson
The Australian
January 23, 2013

A group of Australian lawyers is preparing to sue the federal government on behalf of as many as 48 Indonesian youths who were held in adult prisons after being arrested for crewing asylum boats.

The action has the support of Indonesia's human rights commission, Komnas HAM, the child protection commission and House of Representatives commission responsible for foreign affairs and defence. The planned civil action will seek compensation, so far unspecified, and a formal apology from the Australian government to the 48 youngsters. They were identified by an Australian Human Rights Commission report last July as having been aged under 18 yet charged and then held in adult prisons for an average of more than six months before being released without conviction.

The youths have all since been returned to Indonesia, mostly to poor fishing communities in East Nusa Tenggara and West Java where smugglers commonly recruit crews.

Lisa Hiariej, an Indonesian-born Australian-based lawyer, has interviewed 23 of them so far in preparing the case.

Ms Hiariej last night confirmed she was working with Sydney lawyer Penelope Purcell, who had briefed senior counsel David Russell.

Ms Hiariej said she was unable to discuss the facts of the case, the amounts likely to be sought or which Australian jurisdiction would be the venue for the action.

Commissioner Apong Herlina said yesterday the Indonesian Child Protection Commission (KPAI) was preparing a letter of support for the action.

"KPIA and Komnas HAM support what has been done and what will be done by the Australian commission and the lawyers," said Ms Apong.

The AHRC reported last July that 180 Indonesian crew had been jailed or held in custody in adult prisons, though claiming to be under-age. The AHRC criticised the AFP, the federal Attorney-General's Department and the Commonwealth Director of Public Prosecutions office for flouting children's rights, and undermining the right to a fair trial.

Greens senator Penny Wright, who chaired an inquiry by the Senate committee into the jailing of Indonesian minors caught in people-smuggling operations, called for the commonwealth to pay compensation.

Ms Apong said Indonesians were shocked when KPIA learned in early 2010 "from our friends in Australia" that children were being detained there in adult penal facilities.

"At the time they were saying around 200 children, so KPAI and the Social Affairs Ministry, Komnas HAM, the Foreign Ministry and the police started co-ordinating to rescue them.

"People in Australia were also concerned about the mistakes committed by the government," Ms Apong said yesterday. "So they wanted the Australian government to apologise and pay compensation and they have asked us to support them."

The Attorney-General's Department made no comment, however following the release last June of three Indonesian minors convicted of people-smuggling, Attorney-General Nicola Roxon stressed that minors did not belong in Australian jails.

"This is not a pardon. These three men crewed people-smuggling vessels that came to Australia; all of them were found guilty of that, and they were convicted of that offence," Ms Roxon said at the time.

"This is a decision to give these individuals the benefit of the doubt about their age when intercepted, based on further information now available."

It remains very difficult, according to Australian authorities, to prove the ages of the young Indonesians who had been released after having been convicted of people smuggling offences.

Boat crewmen's bid for even justice failing

Peter Alford and Lauren Wilson
The Australian
January 24, 2013

More than 80 Indonesian people-smuggling crew, jailed before sentencing laws were relaxed, have applied to be released from Australia's prisons, but the federal government has knocked back half of them.

The Attorney-General's Department last night disclosed it was processing release applications from 81 Indonesian prisoners who were sentenced before Nicola Roxon's direction on August 27 that such people should no longer be charged with the offence. It said 40 applications had been rejected. None so far had been granted.

The department said 165 Indonesian crew members were serving sentences in Australian jails for people-smuggling offences.

The Australian understands most of those were sentenced under Section 233C of the Migration Act, carrying a mandatory minimum term of five years and a non-parole period of three years.

Many judges and lawyers loathe Section 233C because, although the government claimed it was directed at so-called "kingpin" people smugglers, the law had been used overwhelmingly against Indonesian crewmen, mostly subsistence fishermen.

The Australian understands the NSW Legal Aid Commission has made applications for the immediate release of almost all the Indonesians jailed for aggravated people smuggling in that state.

NSW Legal Aid yesterday refused to confirm, deny or make any comment on the applications.

Lawyer Penelope Purcell said she had lodged a separate application on behalf of an Indonesian crewman who had served about two years already in a NSW jail.

The Australian revealed yesterday that lawyers including Ms Purcell would sue the federal government for compensation and a formal apology on behalf of 48 Indonesian minors who had been charged and held in adult prisons for an average of more than six months but not convicted.

Last August, after a succession of controversies, Ms Roxon belatedly acknowledged the unfairness of using S233C against Indonesian fishermen, with about 200 claiming to be under 18 years and many claiming to have been duped into crewing the smugglers' boats. She instructed the Commonwealth Director of Public Prosecutions not to charge crew under S233C except in three specific circumstances: if the crewman was a repeat offender; if his role in the operation was more than just crewing; or if a death occurred in the venture.

Indonesians apprehended since Ms Roxon effectively abolished mandatory minimum sentencing for most Indonesian crewmen are usually charged with "unaggravated" offence, which carries no minimum sentence. Once charged and dealt with by the courts, they are usually sent straight home, their sentences discounted for time already served in custody.

However, in issuing the direction, Ms Roxon specifically refused to extend it to people who had already been sentenced for aggravated people smuggling.

Ms Purcell said that unless her client was released from jail and allowed to go home the situation was unfair. "Some of these people are still sitting in jail having seen their friends, who were charged later than them, already sent home," Ms Purcell said.

The Australian understands NSW Legal Aid Commission in November or early December lodged applications for the release of Indonesian prisoners "under licence" (a form of parole that would allow them to go home). In Victoria, it is understood that only one Indonesian crew member remains in jail.

Quick links:

Click the links below to jump down to the articles and items on this page with the same title.

Boy freed after years in prison

The Age
Natalie O'Brien
November 13, 2011

An intellectually disabled Indonesian orphan found to be a teenager has been freed after nearly two years in an adult Sydney prison, and had people smuggling charges against him dropped.

The 15-year-old boy, from Pantar Island in Timor, had been held in detention at Silverwater jail. This latest case is the 33rd time prosecutors have dropped charges against Indonesian children in Australian prisons after Australian Federal Police used a widely discredited wrist X-ray test to prove a detainee is aged over 18 and could be charged with people smuggling offences.

About 50 Indonesian boys enticed into acting as cooks and crew on asylum seeker boats have been arrested on people smuggling charges and held in adult maximum security prisons around Australia.

In a landmark decision on Friday which could affect dozens more cases involving Indonesians before the courts, the West Australian District Court ruled the X-ray unreliable and the methodology flawed.

Judge Philip Eaton made the decision in the case of a 14-year-old who has been kept in maximum security adult jails in Perth for two years awaiting trial for people smuggling. In his case, the boy had already supplied a birth extract and school records to prove his age, but the AFP did not believe him.

In Sydney, at least nine Indonesians who claim they are children are being held in Silverwater jail and two in the Long Bay Correctional Centre. It is federal government policy not to charge children crewing on asylum seeker boats but to send them home. The AFP says it has sent back dozens of boys. But those it does not believe are under 18 have been subjected to the X-rays which it maintains is the only prescribed method of age determination under legislation.

But the X-ray has been discredited by world experts, UNICEF and the Australian Medical Association.

Edwina Lloyd of Blair Criminal Lawyers, the lawyer for the orphan boy (whose name cannot be revealed because he is under age), said things must change.

''How about picking up the phone and calling mum and dad before forcing a discredited technique to be carried out which has resulted in many Indonesian children being locked up in maximum security jails?'' she said.

Ms Lloyd, who travelled to the boy's village to gather evidence about his age, said he was also intellectually impaired.

When the case was formally discharged in court last week, the teenager did not understand that he was going home. Ms Lloyd said the boy was afraid and had said: ''I can't go home if I have to go on my own ... I don't know how to find my way home.''

Ms Lloyd said the teenager's aunt, uncle and sister had not been notified about his arrest.

Greens Senator Sarah Hanson-Young said it was ''staggering'' that the Attorney-General's Department had no protocols for determining the age of minors caught up as crew on asylum seeker boats. A spokeswoman for Attorney-General Robert McClelland said the AFP and Indonesian police were discussing ways to improve their age determination process.

Sydney barrister Mark Plunkett, who has been investigating the cases of Indonesian children in the Australian legal system, said someone needed to take responsibility. ''We have their [overseas] addresses, they can go and speak to mum and dad and find out,'' he said. ''If they decided to, these cases could be cleared up by Christmas.''

Up to 19 Indonesian 'boys' in WA prisons

ABC Online News
First posted November 13, 2011 09:00:48
Updated November 13, 2011 11:47:25

Advocates are calling for the release of up to 19 Indonesians detained in Western Australian prisons who they say could be children.

The teenagers, some of whom have been held for up to two years, were crew on boats suspected of illegally carrying asylum seekers into Australian waters.

Advocates for the boys, who are being held as suspected illegal immigrants, claim they should be released into the community while authorities determine whether or not they are children.

A 16-year-old former kitchen hand could be returned home to Indonesia within a fortnight after lawyers argued he was just 14 when arrested in November 2009.

District Court judge Philip Eaton has cast doubt on the X-ray evidence used by the Commonwealth to hold the boy as an adult in Perth's Hakea Prison for most of the time since his arrest.

Judge Eaton has referred the Commonwealth's application to the Perth Children's Court.

Ross Taylor, from the Perth-based Indonesia Institute lobby group, has been lobbying on behalf of the teenagers.

He says the teenagers should be dealt with more quickly through the courts.

"In the interim period ... they should be housed within the community, within the Indonesian community here in Australia and kept out of incarceration in adult prisons," he said.

Mr Taylor says the WA Government should step in to prevent such children being detained for years in prison.

"That will save the Government an immense amount of money, but also potentially save the mental welfare of very traumatised children who really don't understand what they're even doing in our prisons," he said.

Indonesian boy allegedly sexually abused in jail

by Lisa Martin
AAP / The Australian
November 13, 2011

An Indonesian 15-year-old who spent time locked up in an Australian adult jail on people smuggling charges was allegedly sexually abused while in custody, a Brisbane barrister says.

Between 40 and 50 Indonesian minors are reportedly in Australian prisons on people smuggling charges.

Brisbane lawyer Mark Plunkett said he believes one of the Indonesian minors he represented was sexually abused while in custody at Arthur Gorrie prison alongside rapists, murderers and pedophiles.

The boy has since been returned home to Indonesia.

Mr Plunkett suspected the boy had been abused in prison based on his reaction while being asked about his welfare.

"We were asking him general questions about his welfare. I asked him if he was cold and how he was finding the weather he said 'Unbearable, it was torture'," Mr Plunkett said.

"I asked him about the food 'It's unbearable, I have no rice' ... and we touched upon whether he had suffered any abuse, physical or sexual.

"He convulsed in tears and wasn't able to answer."

Mr Plunkett said the conservation moved to another topic and then returned to the abuse question before the boy started crying again.

Mr Plunkett has called for all Indonesian suspected people smugglers whose ages were in question to be bailed immediately.

"This is a scandal of monstrous proportions," he said.

"We have lost our moral compass."

The barrister attacked the use of a controversial wrist X-ray technique to determine the ages of accused people smugglers.

The X-rays are compared to those taken from largely white middle-class children in the US in the 1930s and the technique has been discredited as by international experts, he said.

Mr Plunkett has urged authorities to conduct a field survey in Indonesian to gather "admissible evidence from parents, next of kin, villagers and Indonesian officials" to determine ages.

Australian Greens senator Sarah Hanson-Young said she was appalled at the risks the Indonesian minors faced in Australian jails.

She also called for the wrist X-ray technique to be scrapped.

"They've got a lax attitude to determining the age of these children. They see them as dispensable," Senator Hanson-Young said.

She said it was hypocritical for Australians to expect special treatment for the 14-year-old Australian boy on drugs charges in Bali while boys from Indonesian fishing boats languished in jails here.

The Greens were considering action in parliament.

Senator Hanson-Young hopes the issue is raised when Prime Minister Julia Gillard meets Indonesian President Susilo Bambang Yudhoyono later this week.

Meanwhile, Fairfax reports an intellectually disabled 16-year-old Indonesian orphan, who was held at Sydney's Silverwater jail for two years, has became the 33rd minor to have people smuggling charges dropped because the wrist X-ray technique was discredited in court.

A spokeswoman for the Home Affairs Minister Brendan O'Connor said the government was not reviewing the use of the technique.

She said the government was in discussions with Indonesian police about "better ways to liaise to with minors' families".

The X-ray technique was the only prescribed physical test under the Crimes Act, she said, adding that Australian authorities also relied on interviews and other research.

Why Australia Jails Indonesian Kids

New Matilda
November 14, 2011
By Rebecca Henschke

When the AFP caught three Indonesian teenagers working on a people-smuggling boat, they used discredited age verification methods to keep them in jail for a year, reports Rebecca Henschke.

Falsely identified as adults by a controversial X-ray technique, three teenagers from Rote Island, East Indonesia, spent a year in an Australian jail on charges of people smuggling until it was proven they were underage.

Ose, 15, his 16-year-old cousin Ako and their 15-year-old friend John Ndollu were selling their catch at the local fish market in Kupang when they became involved in a people-smuggling ring.

"To tell you the absolute truth if I knew what was going to happen I would have stayed here and kept fishing near my home. I was tricked," says Ose, who, like many Indonesians goes by one name.

Offered the equivalent of more than 10 years wages to work as cooks on a boat, the two cousins and their friend didn't think twice about saying yes. Earning a monthly wage of Rp25,000 ($AUD2.50), the prospect of a Rp5-million ($500) paycheck was appealing.

The three teenagers are from Manamola, a remote village on the far flung island of Rote and the closest Indonesian island to Australia. It is one of the poorest places in Indonesia and most people in the village live on one meal a day.

Blinded by the offer, the Rote Island teenagers did not suspect anything was amiss until they were already on the boat. By then, they say, it was too late to renege on the deal.

"When I got to the place where the people were, I did not know what place it was. I was on the boat," he said. "I asked myself, 'what kind of place is this?' But I just followed along. I went wherever they told to me to go."

The boat, carrying aslyum seekers, was at sea for less than 24 hours before they were arrested by Australian border patrol.

"We had no idea, so we kept very quiet because we had been tricked," says Ose, explaining that they did not understand the charges until it was explained to them by an interpreter in Australia.

The youths were transferred to a juvenile immigration detention centre in Darwin where they were held for nine months. It was there that the boys were assessed by immigration officials to determine whether they were adults or not.

Under Australian law, adult people smugglers face mandatory five-year jail sentences, but minors are invariably sent back to their country without charge. As the Indonesian teenagers did not have documents to prove they were minors, the Australian Federal Police (AFP) used the controversial wrist X-ray technique to determine their age. The results showed a high likelihood that the boys were over 18.

"They thought we were adults. The thing is that here [in Indonesia] we work hard. Since we were young we have spent every night working hard at sea so we look much bigger and older than we are," says Ose.

"I didn't believe it when they told me I was an adult ... My parents were the ones who gave birth to me, not that machine. I didn't believe it," he says.

The founding Children's Commissioner in the UK, Sir Al Aynsley Green, was asked by Australia lawyers to give expert evidence in the cases of the three Rote boys. He denounced the Australian government for relying on the method in court. "Serious injustice is possible by a decision being driven by using a method involving wrist X-ray, which has been rejected elsewhere and which is unethical, not fit for purpose proposed, inaccurate, and potentially unlawful," Sir Aynsley Green told the court.

However, on the basis of the X-ray results, the boys were sent to Arthur Gorrie, an adult prison in Brisbane.

"We cried every night because we had never experienced anything like that. It was soul destroying. We found the food difficult because white people eat lots of bread whereas Indonesians like to eat rice. So we felt very desperate because we only got very little rice," recalls Ako.

Only four out of a total 400 people arrested over smuggling offences have been proven to be organisers of people smuggling syndicates. The rest were crewmembers on asylum seeker vessels, mostly deckhands and cooks recruited from remote villages in Indonesia.

Back in Rote, Ose and Ako's families thought the boys were lost for good. "For six months we had no news about them so we thought they were lost at sea ... dead. It was very hard. I was worried ... didn't know what to do," says Ose's sister.

Both Ose and Ako are orphans and John's father died when he was young. His mother imagined a life alone. "She cried. She felt very sad. She thought that I had gone. So she was sad," says John.

Ako, Ose and John were freed after a group of Australian lawyers took up their case pro bono. With testimonies obtained from their families in Rote, the lawyers argued successfully that the boys were underage and had been tricked into people smuggling.

All charges were dropped and after more than a year in detention they were on the way home, travelling on a plane for the first time in their lives.

"Ose was so overwhelmed with joy to be home that he fainted before he reached his house and had to be carried in," says the village pastor, Father Frans Seka.

"Everyone was crying ... after we had prayed together then we started to hear their stories and people started to smile and laugh but at first it was tears of joy that our boys had come home!"

Following their release, the AFP say they will now use additional measures to determine age, including dental X-rays, and will try to collect documents from families back home. Last week, in a landmark decision that could affect dozens more cases involving Indonesians before the courts, the West Australian District Court ruled the X-ray unreliable and the methodology flawed.

The Indonesian government has repeatedly expressed concern that its children are being jailed. Foreign Minister Kevin Rudd recently assured his Indonesian counterpart that Australia would "deal humanely" with children caught up in the people-smuggling trade.

It is thought there may be as many as 40 Indonesian boys in Australia jails, with some as young as 13. Ose is relieved he is no longer on of them. "I cried every night. I just wanted to come home to meet my family," he says. "Thank God it was fate that I was able to return home safely."

The three boys have no work back in their village but they say they will never take a similar offer.

"I'm afraid. Afraid to be sent to prison in Australia. It was a long time and I was very far away from my Mum. I don't want to do it anymore. I don't want to be away from my Mum anymore," says John staring at the dirt floor of his one bedroom thatched house.

Rebecca Henschke went to Kupang with Hagar Cohen to report for the ABC's Background Briefing. You can hear their audio report here.

Australia's shame over its forgotten teenage prisoners

Unreliable age tests are being used to confine teenagers in adult jails for helping to transport refugees, say human rights campaigners. Kathy Marks reports.

The Independent, UK
Kathy Marks
Monday November 14, 2011

For the past six weeks, Australian diplomats have been working frantically on behalf of a 14-year-old boy arrested in Bali after buying marijuana. The public have followed every twist of the case, including the boy's court appearances - his face concealed behind dark glasses and a balaclava - and rumours that his family has sold his story to a television network.

Considerably less outrage has greeted revelations that possibly dozens of Indonesian teenagers have been held for up to two years in adult prisons around Australia. Their plight has barely grazed the public consciousness, and judging by comments on news websites, some who do know about their situation believe they deserve no sympathy. Their alleged crime is helping asylum-seekers, the vast majority of whom end up being accepted as genuine refugees, to travel by boat to Australia.

Lawyers say the boys, mostly aged 14 to 17, are the unwitting victims of a crackdown on "people smugglers" by a government determined to be seen to be tough on asylum-seekers. Mostly illiterate and from poor fishing villages, they were recruited as crew and had no inkling they were being asked to commit a crime that, under legislation introduced last year, carries a minimum penalty of five years.

The Labor government's policy is to send minors home without charging them. However, lawyers and human rights advocates say many are being wrongly identified as adults because police are using a widely discredited test to ascertain their age. Indonesian diplomats believe 50 children are in custody, awaiting trial; some activists put the number at closer to 100.

The wrist X-ray test, which assumes that a youth with a mature skeleton is at least 19, has been rejected by Unicef and is banned in Britain. Four of Australia's leading medical bodies, including the Royal Australasian College of Physicians, have written to the Immigration Minister, Chris Bowen, warning him that the test is unethical and unreliable.

Mark Plunkett, a barrister who secured the release of three teenagers held in a maximum-security prison in Brisbane, believes children are being swept up in the demonisation of people-smugglers - described by the Foreign Minister, Kevin Rudd, as "the vilest form of human life". Although hundreds of Indonesians, mainly adults, have been arrested and prosecuted, they are mostly hand-to-mouth fishermen and sailors - not the "Mr Bigs" behind the people-smuggling operations. Mr Plunkett, who has taken up the issue at the request of Indonesian consular officials, called on the Australian government yesterday to work with Indonesia to gather evidence about the ages of boys in custody from parents, villagers and local officials.

"Children are being locked up in adult jails alongside paedophiles and sex offenders," he said.

His three clients - Ose Lani, 14, his cousin, Ako Lani, 15, and their friend, John Ndollu, 16, all from Manamola village on Rote Island, in southern Indonesia - were recruited as cooks and deckhands on a boat carrying Afghan and Iranian asylum-seekers. They were each promised $500 (314), twice what they would normally earn in a year.

"They were told they were taking Muslims who were being persecuted to a safe place," Mr Plunkett said.

Their boat was intercepted in April last year by the Australian Navy near Ashmore Reef, an uninhabited Australian island in the Indian Ocean.

The three were arrested and spent eight months in a detention centre in Darwin. After undergoing the X-ray test, they were charged with people smuggling, manacled and flown to Brisbane, where they were strip-searched at the prison.

It was only after Mr Plunkett visited Manamola and took statements from their families and community leaders that prosecutors dropped the charges. The boys were released in June, having spent six months in jail, where their lawyer believes at least one was sexually abused. He said: "When I asked them, 'has anyone been bothering you or touching you?' one of them kept crying and convulsing," he said.

A spokeswoman for the Home Affairs Minister, Brendan O'Connor, said police liaised with their Indonesian counterparts to gather as much information as possible from home villages. She also defended the X-ray test, saying "we are not aware of a better physical test", and added that because of the mandatory five-year sentence "there's an incentive for people to claim they are minors".

The president of the Australian Human Rights Commission, Catherine Branson QC, said she was "most concerned" about the use of the test in people-smuggling cases. She has been pressing the Attorney-General, Robert McClelland, to review it. According to Mr O'Connor's office, there are 25 Indonesians in prison claiming to be under-age; the Department of Foreign Affairs puts the figure at 17.

While Indonesia has expressed its concern through low-key diplomatic channels, a Foreign Ministry spokesman told the Jakarta Post that the Australian government had breached the Vienna Convention on consular relations by not informing it until many months later that its nationals had been arrested.

Mr Plunkett believes the hysteria whipped up about asylum-seekers by both major political parties "has clouded the judgement of our police force and prosecutors".

The Prime Minister, Julia Gillard, is expected to raise the Bali teenager's case with Indonesian President, Susilo Bambang Yudhoyono, this week. However, there has been no suggestion that they will discuss the fate of the young Indonesians in custody here. Mr Rudd has told his staff to make the Australian boy their top priority.

The Shadow Treasurer, Joe Hockey, has described his situation as "a living nightmare for everyone".

The teenager was arrested after flying to Bali for a family holiday. His parents claim he is a habitual user of marijuana and have promised the Balinese court he will undergo rehabilitation if released.

Prosecutors have demanded a three-month jail term. The verdict and sentence are expected next week.

Hardline approach

Australian immigration policy has long been controversial.

During the economic tough years in the 1990s, immigrants were automatically detained while their visa applications were assessed. Since then, even with an improved economic situation, politicians have continued to act tough on people trying to enter the country, believing it "plays well" with working class voters.

In recent years a number of incidents have attracted scathing criticism from human rights groups. Many asylum seekers target Christmas Island, an Australian territory in the Indian Ocean, as an entry point. Last December, 48 people drowned trying to get the island.

Since then Prime Minister Julia Gillard has continued to press her case for immigration applications to be processed in Malaysia.

The policy - under which 800 asylum-seekers arriving in Australia would have been sent to Malaysia for processing in exchange for Australia accepting 400 refugees waiting in Malaysia to be resettled - was declared illegal by the High Court in August.

Pressure grows on asylum treatment of Indonesian juveniles

Mark Dodd and Debbie Guest
The Australian
November 14, 2011

Senior lawyers in NSW and Queensland will seek a royal commission into the federal government's treatment of Indonesian juveniles jailed under tough mandatory sentencing laws.

A draft copy of the suggested terms of inquiry has been received by The Australian.

Yesterday the document was being circulated among senior counsel, lawyers and retired judges concerned by the use of mandatory detention laws against under-age asylum-seeker boat crew, mostly from impoverished villages scattered along Indonesia's eastern archipelago.

"The commonwealth has failed in its first duty as a prosecutor to gather all relevant evidence, especially from the parents as to whether they were under 18 at the time of the alleged offence," said Brisbane barrister Mark Plunkett.

"They need to remove children from the obvious risks of being kept in adult jails and get the boys home before Christmas.

"So, we're calling on responsible elected representatives of the people to come out of hiding and take responsibility for this."

In June Mr Plunkett won the freedom of three Indonesian boys jailed for people-smuggling.

It is understood a formal request will be given to federal Attorney-General Robert McClelland this week.

Under the proposed terms it would investigate whether the Gillard government is in breach of its UN Rights of the Child obligations.

It would also report on the reliability of age-determination procedures used by the Australian Federal Police for asylum-seeker boat crew claiming to be juveniles.

In a case that has attracted widespread criticism of the commonwealth's handling of asylum-seekers, last week prosecutors dropped people-smuggling charges against a mentally impaired 15-year-old Indonesian boy held for 20 months and 20 days in Silverwater maximum-security prison.

The Australian Lawyers Alliance said yesterday two other recent cases in Western Australia - in which judges were critical of the wrist X-ray method used to determine age - could open the door to appeals by Indonesian crew convicted of smuggling.

On Friday, District Court judge Philip Eaton said the wrist X-ray method was unreliable and flawed. He ordered charges against a boy claiming to be 14 at the time of the alleged smuggling offence to be referred to the Children's Court. The boy has already spent almost two years in custody in an adult prison in Perth and is expected to be sent back to Indonesia because prosecutors do not generally proceed with cases against children.

"If there are people who say that their age was misrepresented, they can potentially launch appeals," alliance national president Greg Barns said.

"They can say their age was 15 at the time, not 18, and the only reason it was said to be 18 was because of this testing."

Greens demand independent inquiry into detained Indonesian children

Media Release
Spokesperson Sarah Hanson-Young
Monday November 14, 2011

All Indonesians who are detained in Australian adult jails should be immediately released while they undergo processes to determine their ages, the Australian Greens said today.

"The Gillard government should urgently commission an independent inquiry into why these Indonesian children are being imprisoned in Australian jails," Greens' immigration spokesperson, Sen. Sarah Hanson-Young, said today.

"This unacceptable policy breaches Australia's obligations under the Convention on the Rights of the Child, and also breaches appropriate standards under our domestic laws.

"How would Australian parents react if it were their children being detained alongside serious adult offenders in an Indonesian prison?

"AFP and Immigration Department officials should also immediately cease relying on discredited and outdated wrist x-ray methods to determine the ages of Indonesians accused of people smuggling offences who say they are minors.

"Many of these children are poor and illiterate and are tricked into working on asylum seeker boats by the promise of relatively well-paid fishing jobs. They are then detained for sometimes years in Australian adult prisons without charge. Police and prosecutors must act quickly to investigate their ages.

"If Australia had a Commonwealth Commissioner for Children and Young People, they would act as the legal guardian of these children. I have a bill before parliament to achieve this but it needs the support of both major parties.

"Until then, the presumption should be on the government to treat these Indonesian children as children, until the authorities can prove that they are adults."

Call for inquiry into jailed Indonesia minors

By Lisa Martin
November 14, 2011

A royal commission is needed to investigate the treatment of Indonesian minors held in custody in Australian adult prisons on people-smuggling charges, a top Queensland lawyer says.

Between 40 and 50 Indonesian minors reportedly are held in custody in Australian prisons alongside rapists, pedophiles and murderers.

The teenage boys come from poor Indonesian fishing villages and are usually boat crew and cooks on asylum-seeker vessels.

Brisbane barrister Mark Plunkett has drafted terms of reference for an inquiry, which was obtained by AAP, to investigate whether the federal government has breached the United Nations' Rights of the Child.

Mr Plunkett has called for all Indonesian suspected people smugglers whose ages are in question to be bailed immediately.

"This is a scandal of monstrous proportions ... no one will stand up," he said.

"We have lost our moral compass."

The barrister attacked the use of a controversial wrist X-ray technique to determine the ages of accused people smugglers.

The measure has been discredited by international experts.

Mr Plunkett has urged authorities to conduct a field survey in Indonesian to gather "admissible evidence" from parents, next of kin, villagers and Indonesian officials to determine ages.

He believes one of the Indonesian minors he represented was sexually abused while in custody at Queensland's Arthur Gorrie prison.

The boy has since returned to Indonesia.

Mr Plunkett suspected the boy had been abused in prison based on his reaction to questions about his welfare.

A spokeswoman for the Home Affairs Minister Brendan O'Connor has defended the Federal Government's treatment of Indonesian minors and the use of the wrist X-ray technique.

"Those who are assessed as adults but claim to be minors are offered the option of juvenile detention, rather than adult prison, while their cases are heard," the spokeswoman said.

The Australian Federal Police worked with Indonesian authorities to gather as much information as possible for age-determination inquiries.

"Where proof of age is not conclusive, the person is given the benefit of the doubt and is sent home," the minister's spokeswoman said.

End the shame of locking up Indonesian children

The Age
Sarah Hanson-Young
November 15, 2011

If an intellectually-disabled Australian boy was detained in an Indonesian prison without charge for two years before being quietly released and deported, Australians would be fuming. They'd be as upset as they are over the boy in a Bali prison on drugs possession charges.

Yet this happened recently to an Indonesian boy who spent two years inside Sydney's Silverwater prison on people smuggling charges. The 15-year-old has been sent back to Pantar island in Timor. The Australian government hoped you wouldn't notice that it is targeting children and not the organisers of people smuggling syndicates.

This orphan was not the first Indonesian child detained in an Australian adult prison, and he won't be the last. Lawyers say there are between 40 and 50 Indonesian minors in custody in Australia, some without charge, accused of people smuggling.

Australian authorities continue to detain them while using outdated and internationally-discredited wrist x-ray techniques to determine their ages. Indonesian consulate officials told me 136 minors have arrived in Australia as boat crew since 2008; 33 have had their cases dropped by prosecutors or were found to be minors, a further 26 are in remand while their ages are checked.

One barrister, Mark Plunkett, says his client, aged 15, was sexually abused in the Arthur Gorrie adult prison in Brisbane. The boy has since returned to Indonesia, but has been clearly damaged by his experience. (Mr Plunkett also acted for three Indonesian boys who were returned home from Brisbane after their cases were featured in the Age in June this year.)

Late last week, a Western Australia judge ruled an Indonesian boy accused of people smuggling was a minor. The 14-year-old spent nearly two years in Perth's Hakea prison because Australian authorities said the wrist x-rays put his age at 19. He remains in an adult prison. Australia's Home Affairs Minister, Brendan O'Connor, says the government has no plans to drop the wrist x-ray techniques.

International law is clear on where Australia's obligations lie: no child should be detained in an adult prison. The Gillard government's stance contravenes what Australia promises to do under the Convention the Rights of the Child, as well as domestic criminal laws. Children's rights are universal and cannot be negated merely because the Australian government wants to attack people smugglers.

I'm not in the business of defending people smugglers, I am however in the business of standing up for the rights of children - whatever country they are born in - and the fact is these children are not the people smugglers, they are as dispensable to the organisers as the leaky boats they sail to our shores.

Last Friday, a Senate inquiry into the government's Deterring People Smuggling Bill heard from legal experts that there are many problems with the proposed retrospective criminal law.

The bill misses its intended target, because the people smuggling leaders are not caught and prosecuted, only the small fry are.

The public defender acting for over 50 accused people smugglers in Victoria - including the Court of Appeal test case the government is trying to scuttle with its bill - told the committee that the Australian community would be aghast if they knew how Indonesian men, some of them just boys, get duped into becoming boat crew on asylum seeker vessels.

Saul Holt from Victoria Legal Aid said uneducated and poor fishermen are offered American dollars to join what they believe are fishing or cargo trips. They have no idea of the destinations, no compasses, and often are surprised to find themselves swapped onto the leaky boats out at sea while the organisers flee to Indonesia. The experts told the committee that the people smuggling charges under the Bill, with mandatory sentences, are not a deterrent and breach the rule of law with their retrospectivity back to 1999.

The money of Australian taxpayers is being wasted. Why should they continue paying for the incarceration and prosecution of Indonesian children? That money would be saved if children were treated as children and not imprisoned with adults. The onus ought to be on Australian police and prosecutors to prove the accused are adults, not for the defendants' legal teams to fly to Indonesia to interview their families and get birth certificates because the Australian authorities don't believe their claims.

If Australia had a Commonwealth Commissioner for children and young people, they could act as the legal guardian for these Indonesian children. I have a bill before the Parliament to create this post, but it has yet to be supported by the major parties. Until then, the government should urgently start an independent inquiry into why children are continuing to be detained. It must end this international shame.

Plight of jailed Indonesians likened to child abuse

By Peter Lloyd and staff
First posted November 15, 2011 20:56:53
Updated November 16, 2011 07:04:13

A Brisbane barrister is calling for a judicial inquiry into the plight of young Indonesians in adult prisons in Australia.

Up to 100 people who say they are children are in jails around Australia awaiting trial under people smuggling laws.

Under Federal Government policy only adult crew members on boats bringing asylum seekers face charges while minors are sent home to their families.

Barrister Mark Plunkett has been enlisted by the Indonesian government to help identify cases and has launched a blistering attack on Julia Gillard's Government, accusing it of being party to institutionalised child abuse.

"The Commonwealth is cruel to children. This is institutionalised child abuse by the law enforcement authorities who won't do their basic duties and find the mums and dads," he said.

Mr Plunkett is concerned by the jailing of teenage boys who were recruited to work as cooks and deckhands on boats bringing asylum seekers from Indonesia.

The Federal Police use a wrist X-ray technique to establish the age of people in detention who claim they are teenagers, but it is widely discredited by doctors and the courts.

Mr Plunkett secured the release of three teenagers in July and says the X-ray method is "crank science".

He says where there is doubt about their age, they should be sent home. That they are not is grounds for a judicial inquiry into what he calls "neglect of duty" by the Commonwealth.

"It's led the Commonwealth into a grievous error of locking up, by its own admission, 33 children which have been released and what defence lawyers are saying are possibly another 50 children being held in adult jails alongside sex offenders, paedophiles and murderers," he said.

Federal Police have been instructed by the Minister for Home Affairs to make more thorough attempts to get information about a person in custody from their homes and families.

A similar push is coming from the Indonesian side, with the chair of the Indonesian Legal Aid Foundation in Australia on a fact-finding mission.

Under Erna Ratnaningsih's direction, legal aid lawyers in both countries will begin cooperating to fast track efforts to locate documentation that proves the age of those in detention.

She says even in the poorest villages in Indonesia where there is no birth registration, there are still ways to verify the age of individuals, starting with records of primary school attendance.

She says all Australian officials need to do is ask the parents how old their children are.

"I think the Australian governments would know about the culture of Indonesian people, how they are living in the remote areas," she said.

Indonesia's president Susilo Bambang Yudhoyono will have a chance to raise the issue with Ms Gillard this weekend.

The pair are scheduled for a face-to-face meeting after the conclusion of the East Asia Summit in Bali.

People smuggling charges against Indonesian boy dropped

ABC News Online
By Margaret Paul
Posted November 16, 2011 11:31:29
Updated November 16, 2011 13:13:56

The Federal Government has dropped people smuggling charges against an Indonesian boy after his lawyers travelled to Indonesia to prove his age.

Dion Domun was intercepted off Ashmore Reef in March this year, and charged with aggravated people smuggling.

He was moved to immigration facilities in Melbourne.

Mr Domun always maintained he was 15, and Legal Aid lawyers travelled to his village in Indonesia to get affidavits from his family to prove he was under 18.

Based on that evidence the prosecution dropped the charge.

Mr Domun will now be released and returned to Indonesia.

The boy's lawyer, Gavin Green, says his client is thrilled.

"He knew this was going to happen," he said.

"He was very excited yesterday and we're delighted for him."

Under Federal Government policy only adult crew members on boats bringing asylum seekers face charges, while minors are sent home to their families.

But it can often be hard to prove the ages of Indonesian crew members and activists say up to 100 people who say they are children are in jails around Australia awaiting trial under people smuggling laws.

Federal police use a wrist X-ray technique to establish the age of people in detention, but the technique is widely questioned by doctors and the courts.

Earlier this week, a human rights barrister called for a judicial inquiry into the plight of young Indonesians in adult prisons in Australia.

Barrister Mark Plunkett, who has been enlisted by the Indonesian government to help identify cases, launched a blistering attack on the Federal Government, accusing it of being party to institutionalised child abuse.

"The Commonwealth is cruel to children. This is institutionalised child abuse by the law enforcement authorities who won't do their basic duties and find the mums and dads," he said.

Deal to free jailed children

Sydney Morning Herald
Tom Allard
November 20, 2011

The Prime Minister, Julia Gillard, vowed to accelerate the processing of Indonesian children arrested for crewing people-smuggling boats, amid growing anger in Indonesia about the treatment of its juveniles.

Ms Gillard, who is in Bali for the East Asia Summit, will meet the Indonesian President, Susilo Bambang Yudhoyono, today and the issue is expected to be discussed after Indonesian officials called for the quick release of minors who remain in detention in Australia.

This follows recent revelations in The Sun-Herald that dozens of Indonesian teenagers who say they were duped into acting as cooks and crew on asylum-seeker boats have been jailed in maximum-security adult prisons.

The Australian Federal Police rely on wrist X-rays to determine age in the absence of documentation, despite a Perth court and a slew of experts describing the technique as inherently unreliable.

Adding heat to an issue that is straining relations between the two countries, Indonesia's child protection authority yesterday demanded the Australian government abandon the technique.

Heading off a potentially damaging row, Ms Gillard said yesterday: ''I do have concerns that this is taking too long.''

Under new arrangements, the process for obtaining documents such as birth certificates, school records and the like will be accelerated.

A spokesman for Dr Yudhoyono yesterday said Indonesia wanted its minors returned as soon as possible. ''It's not in the interest of these minors to be put in custody with adults,'' the spokesman, Teuku Faizasyah, said. ''We want them having a different treatment.''

While lawyers and activists say as many as 100 juveniles remain in prison, Ms Gillard said there were 17 remaining cases where the age of the juveniles was in dispute, and that 77 Indonesian minors had been sent home since 2008.

She stressed the policy had always been to send Indonesian children home but problems had arisen because many of those arrested did not have documents and their ages could not be verified.

Indonesia's National Commission on Child Protection head, Arist Merdeka Sirait, said the X-ray use breached United Nations conventions and ''needs to be abandoned''.

But Ms Gillard said she would not order the Australian Federal Police to ditch the technique, saying it was an operational matter.

Daniel Flitton writes: Ms Gillard delivered a stern warning to Burma - controversially confirmed as host for the annual East Asia Summit in 2014.

Ms Gillard spoke to Burma's ruler, Than Shwe, at a leaders' banquet in Bali on Friday and later said the country had made the best progress towards democracy in 20 years but much more needed to be done. She said Australia might boycott the 2014 summit.

Greens bill bans X-rays of people smugglers

The Age
Michael Gordon
November 21, 2011

Police would be banned from using wrist X-rays to decide whether crew on boats carrying asylum seekers to Australia are adults, under legislation to be introduced in Federal Parliament by the Greens.

Police would also have to prove conclusively, on the basis of other evidence, that alleged people smugglers who claim to be minors are adults before they could be imprisoned in adult jails.

Greens Senator Sarah Hanson-Young says her draft legislation will, for the first time, lay out a clear process for dealing with alleged people smugglers who claim to be under 18.

The move follows rising concern at the number of Indonesian children jailed in Australia on people-smuggling charges, largely because they were deemed to be adults on the basis of discredited wrist X-rays.

It also comes after the dropping of aggravated people-smuggling charges last week against Dion Domun, a 15-year-old Indonesian youth who has spent more than eight months in immigration detention, after Victorian legal aid lawyers went to his village and obtained proof of his age.

Indonesia's child protection agency called over the weekend for wrist X-rays, which have already been branded ''untrustworthy and unreliable'' by medical bodies in Australia, to be abandoned as a technique to determine age.

Prime Minister Julia Gillard told Indonesian President Susilo Bambang Yudhoyono yesterday she wanted to speed up the processing of Indonesian minors in Australia, after making it clear earlier that the use of the X-ray technique was an ''operational matter'' for Australian Federal Police. A spokesman for Dr Yudhoyono said the Indonesian leader thanked her for the sentiments and looked forward to concrete proposals.

Senator Hanson-Young, who will give copies of the draft bill to the government, opposition and crossbench MPs today, said she was hoping to discuss the move with opposition frontbenchers Michael Keenan and Scott Morrison.

''I'm optimistic that common sense can prevail. The proof is already there that the process the government is using is not working,'' Senator Hanson-Young told The Age last night.

''We've had at least 35 minors who have been illegally detained and jailed in adult facilities and there's the possibility of many more still in the system.''

Mr Keenan, the opposition justice and border protection spokesman, said he was happy to discuss any ideas to improve age determination with Senator Hanson-Young.

But he would oppose any shift towards a situation where the stated ages of suspects were accepted without adequate probing.

Senator Hanson-Young said the purpose of the bill would be to ensure that no young person whose status as a minor is in dispute is detained as an adult in the first instance.

It will give authorities 30 days to determine the age of suspects and deem wrist and teeth X-rays inadmissible in this process.

Treatment of Indonesian children to be investigated

Sydney Morning Herald
Natalie O'Brien
November 23, 2011

The treatment of dozens of Indonesian children, who have been arrested for crewing asylum seeker boats and then held in maximum security adult jails, is to be investigated by the Australian Human Rights Commission.

Announcing a wide-ranging inquiry, the commission president Catherine Branson, QC, said she had been concerned for some time children may have being held for long periods because errors had been made in determining their age.

Ms Branson said there were concerns for at least 20 Indonesian crew in adult prisons who said they were children.

''Australia has a responsibility to ensure that unaccompanied children who arrive in Australia are provided with special protection and assistance due to their vulnerability,'' Ms Branson said.

''Australia is also obliged to ensure that children deprived of their liberty are separated from adults in detention or prison.''

The announcement of the inquiry comes after the Prime Minister, Julia Gillard, met the Indonesian President, Susilo Bambang Yudhoyono, on Sunday and promised a more speedy processing of the suspected people smugglers who claimed to be children.

Ms Gillard and Mr Yudhoyono spoke about the escalating issue at the East Asia Summit as Indonesia's child protection authority demanded Australia abandon an unreliable wrist x-ray technique used by the Australian Federal Police to prove crew members were over 18.

A series of stories in the Herald and The Sun-Herald have revealed dozens of Indonesian teenagers who say they were enticed into acting as cooks and crew on asylum seeker boats have been wrongly charged as adults and held in adult prisons while awaiting trial - on the strength of the x-ray technique.

The Australian government policy is not to charge children found crewing the boats, but to send them back to Indonesia.

But documentation for proof of age is not always readily available and in some cases a controversial wrist x-ray is used, despite numerous medical experts around the world and the Western Australian District Court saying the x-ray is unreliable.

Commonwealth prosecutors have been forced to drop 35 people smuggling cases against Indonesian juveniles because they could not rely on the x-rays to prove they were adults.

Lawyers for some of the the boys, including barrister, Mark Plunkett, said they had been forced to travel to Indonesia themselves to gather evidence about the age of the teenagers.

Mr Plunkett said in many cases, they found there had been no attempt by Australian authorities to contact the parents of the children or to verify their ages.

Perth doctor, Vincent Low, who has been analysing the x-rays for the AFP, has said the results should be ignored if appropriate documents proved age.

Ms Branson confirmed the commission inquiry, which is expected to run until mid next year, would look into the use of wrist x-rays.

The Greens senator Sarah Hanson-Young welcomed the inquiry saying Australia had broken its national and international obligations.

Senator Hanson-Young said the Greens would this week introduce a bill to create protocols for confirming the ages of the Indonesian crew within 30 days.

Police stripped of role in assessing age of people-smugglers

Debbie Guest
The Australian
December 9, 2011

Australian Federal Police will be stripped of their role in judging the age of Indonesian crew accused of people smuggling, as the Gillard government moves to avoid detaining children in adult jails.

Responding to Indonesian government concerns about the number of crew in jails despite claiming to be children, Home Affairs Minister Brendan O'Connor said age assessment would no longer be an AFP responsibility. The Department of Immigration and Citizenship would instead assess the age of Indonesian crew.

Those deemed to be children would be returned home as quickly as possible, without facing smuggling charges.

The new assessment process is yet to be finalised but it will not apply to crew claiming to be children already in jail facing smuggling charges. It is unclear whether crew deemed to be adults, but who still claim they are minors, will be returned home or prosecuted.

The procedures follow talks this week between Mr O'Connor and Indonesian officials. The Indonesia Institute in Western Australia estimates 50 Indonesians are being held in adult jails on people-smuggling charges.

The AFP used a contentious wrist X-ray to assess age.

Lifeline for jailed Indonesian children

Sydney Morning Herald
Natalie O'Brien
December 11, 2011

Advocates for Indonesian children jailed in Australia as adults for crewing people-smuggling boats have welcomed the decision to strip the Australian Federal Police of its role in determining the age of the teenagers.

The Minister for Home Affairs, Brendan O'Connor, made the announcement after talks last week with Indonesian officials.

It also followed revelations in The Sun-Herald and The Sydney Morning Herald about the treatment of the dozens of Indonesian children in maximum-security adult prisons and the use of a controversial wrist X-ray by the AFP to determine age. A spokeswoman for Mr O'Connor said the Department of Immigration would be responsible for the assessment of age and details of the new protocols would be announced next week.

The head of the Indonesia Institute, Ross Taylor, said it was a positive move but one that should have happened last year when it was discovered the AFP was using the widely discredited wrist X-ray technique to decide whether crew members were over 18 years old.

''We had one boy in a maximum-security adult jail for two years who has just been sent home. I don't understand why couldn't his age be determined in two months instead of taking two years,'' he said.

Mr Taylor, the founder and president of the non-government organisation in Western Australia, said the government had also committed to speeding up the process of determining the ages of those claiming to be children. Amid growing concerns about the treatment of teenage boys, the Office of the Commonwealth Director of Public Prosecutions also said it would no longer oppose bail for Indonesian crew who claim to be children.

The government's policy was not to prosecute children crewing asylum boats but the AFP subjected those it believed to be adults to wrist X-rays. The AFP built cases against dozens of young boys as adults on the strength of the X-rays analysed by Perth radiologist Dr Vincent Low and continued to rely on his evidence despite the rejection of a series of recent cases by the courts. In a judgment last month, West Australian District Court Judge Philip Eaton said: ''The method employed by Dr Low and the assumptions upon which it is based render his opinion unreliable.''

The Office of the Commonwealth Director of Public Prosecutions has had to drop more than 40 cases because it could not prove the boys were adults. Officials at the Indonesian embassy believe there are as many as 50 Indonesians who claim to be children being held in adult jails awaiting trial across Australia.

More cases are expected to be abandoned as lawyers for the Indonesians travel to their homes to gather evidence about their ages.

People smuggling: boy's charges dropped

The Age
Michael Gordon
December 14, 2011

One question was left hanging after another Indonesian teenager was excused from Melbourne Magistrates Court yesterday after people-smuggling charges, carrying a five-year jail term, were withdrawn by federal prosecutors.

If it is so simple for defence lawyers to go to Indonesia and establish beyond reasonable doubt that someone who has been charged as a man is, in fact, a boy, why can't this be done by Australian Federal Police before the child is locked up with adults for extended periods?

Darmansyah was 15 when he accepted a job as a fisherman on a small boat that took 17 asylum seekers to Christmas Island in August last year. He was charged as an adult and, his lawyers say, ignored when he produced evidence of his age.

It was only after solicitor Sandra Wendlandt travelled to his home in the Riau Islands, between Singapore and Sumatra, and returned with his original birth certificate and testimonies from his family, that prosecutors considered withdrawing the charge before a committal hearing planned for February.

''When I spoke to his family, they said no one else had approached them in relation to him,'' Ms Wendlandt, of Robert Stary Lawyers, said yesterday. ''That would have been a very simple thing to do.''

This is the third case in as many weeks in Melbourne where lawyers have done the detective work they argue should have been done by prosecutors.

Greens senator Sarah Hanson-Young, who was at the court yesterday, said it was the 38th such case this year. ''This is an absolute scandal,'' she said.

Amid concerns that many more juveniles could be in adult detention centres or jails on people-smuggling charges, the Indonesian embassy will host a forum in Canberra today with legal aid and other lawyers.

Outgoing Home Affairs Minister Brendan O'Connor was in Jakarta last week to reassure the Indonesian government that new procedures were in place to identify the age of suspects and expedite their return to Indonesia if they were under age.

In response to questions from The Age, the Attorney-General's Department last night insisted that, in cases where age was not able to be clearly established, ''the person being investigated or prosecuted will be given the benefit of the doubt and returned to their country of origin without charge''.

But Mark Plunkett, the Brisbane lawyer who first raised the alarm, feared as many as 50 other minors could still be in Australian detention centres and jails. ''In the law we have the best evidence rule, which means you go and ask mum and dad,'' he said. ''The AFP don't even tell mum and dad their kids are locked up. This is one of the most monstrous acts of inhumanity, perpetrated by a government on behalf of its people against the people of a neighbouring country.''

While Ms Wendlandt says making contact with Darmansyah's family was relatively easy, getting to them was a challenge, involving flights to Jakarta and Batam Island and several ferry trips - including one that almost ended in disaster when a ferry hit a reef.

Although the boy initially gave a false name and age - he insists he was told to do this by those who recruited him - he soon told the truth and produced a copy of an Indonesian family card with his real name and age.

He was not believed and was then subjected to a wrist X-ray that suggested there was a 40 per cent chance he was 19. In several recent cases, expert witnesses have said the X-ray tests have been discredited and should not be used to determine age.

The Attorney-General's Department insists wrist X-rays will be used to determine the age of those claiming to be minors, along with dental X-rays and ''taking steps as early as possible to seek information from the individual's country of origin, including birth certificates, where age is contested, and using interview techniques to help determine age''.

During yesterday's hearing, defence lawyers took the unusual step of seeking costs. Rob Stary said his firm had spent about $15,000 in legal aid grants to establish that Darmansyah was 15.

Darmansyah was returned to an immigration detention centre in Broadmeadows used for adult males to await his return to Indonesia. ''I'm very happy,'' he said through an interpreter.

Call to end people smugglers' 5-year terms

The Age
Michael Gordon
January 19, 2012

THE Greens will lead a push to end mandatory five-year jail terms for Indonesian fishermen charged with people smuggling after crewing boats carrying asylum seekers to Australia.

The move comes as dozens of cases threaten to overwhelm the courts this year and the states are threatening a revolt over the mounting costs of drawn-out proceedings. It also follows criticism from 10 Australian judges and law and human rights bodies that the penalties target the wrong people, impose incredible hardship on those imprisoned and their families, and have no deterrent effect.

''The Parliament needs to send a message that the courts need to be concentrating on the big fry, the organisers of the people smuggling syndicates,'' Greens senator Sarah Hanson-Young told The Age yesterday. ''If we want to concentrate our authorities' time on catching the real criminals and punishing the people who deserve to be punished, let's stop wasting taxpayers' money and precious court time on those who have been tricked themselves.''

Senator Hanson-Young plans to introduce her bill the day Parliament resumes on February 7 and is seeking a meeting with Attorney-General Nicola Roxon. Her push was backed yesterday by Victoria Legal Aid, the Human Rights Legal Centre and the Criminal Bar Association of Victoria. More than 500 Indonesian crew have been arrested for their role in people smuggling ventures since September 2008 and almost all were charged with aggravated people smuggling under the Migration Act, which was toughened by the Rudd government in 2010.

More than 50 Indonesians are in Victorian jails awaiting trial, with 24 cases due to begin from the middle of this year in the County Court. Another 73 are in immigration detention centres, yet to be charged.

''The vast majority of these people are impoverished fishermen, with very low moral culpability who are facing five-year prison terms, and it's unjust,'' said Victorian Legal Aid criminal law services director Saul Holt. Mr Holt said offenders were typically in their late teens and were duped by the real people smugglers ''into doing no more than cooking rice on a boat, without truly knowing what they were doing''.

A sentence of five years in Victoria would typically be applied to someone who had committed sexual offences against children, serious violence resulting in major injury, serious fraud and drug offences, he said. ''The comparison is really stark - and it's what happens when discretion is taken out of the hands of the courts.''

Rachel Ball, of the Human Rights Law Centre, last night urged MPs of all parties to use Senator Hanson-Young's bill as an opportunity ''to fix flawed legislation that puts Australia out of step with other modern democracies''.

Victorian Attorney-General Robert Clark has asked the Gillard government to meet the costs of the cases, which he said were placing a strain on the state's legal system. ''While the Commonwealth helps meet the Legal Aid costs of these cases, all other costs fall on the Victorian Coalition government and taxpayer, and put considerable strain on our courts and other resources,'' he said.

Ms Roxon last week defended mandatory sentencing of boat crews, describing it as ''part of our armoury'' in dealing with people smuggling issues. But she added: ''We are always prepared to look at comments that are being raised by the judiciary and I will consider those as they come through.''

Small fish in rough seas

The Age
Michael Gordon
February 8, 2012

Greens senator Sarah Hanson-Young wants to stop hundreds of so-called Indonesian people smugglers from serving mandatory five-year terms in Australian jails. As Michael Gordon reports, the treatment of small-time players has big consequences.

Budi was waiting for a bus in Jakarta when he says a stranger made him an offer that was too good to refuse - 10 million rupiah (about $A1000) to crew a boat that would take a group of people to an unnamed island.

He was 19 years old, uneducated and a long way from his home on the Indonesian island of Ambon. Another man at the bus stop was offered the same deal and, like Budi, agreed without a second's hesitation. The only catch, they were told, was that they wouldn't get paid until they came back with the boat.

What neither of them understood was that there was never any chance that the boat would make the return journey, or that they would receive the payment. What neither could envisage, or even vaguely comprehend, was that they would wind up in an Australian jail facing a serious criminal charge with a mandatory five-year jail term.

Budi, not his real name, is an accidental people smuggler, if you accept that cooking noodles and keeping the engine going on an unseaworthy fishing boat for a group of desperate asylum seekers constitutes people smuggling. He is one of about 500 Indonesians in the Australian criminal justice system who share a common bond.

Almost all of them, according to what they have told lawyers, Indonesian officials and Australian Federal Police, are peripheral players in what, for a few Mr Bigs (who never accompany their human cargo to its final destination), is a lucrative business.

It is a sad reflection of the toxic debate between Labor and the Coalition on asylum seekers that one of the few areas of common ground is their support for legislation that denies judges any discretion in sentencing those who crew boats that carry asylum seekers to this country.

Under amendments passed by the Rudd government with Coalition support, so long as there are more than five people on the boat, crew members are charged with aggravated people smuggling and, if found guilty, sentenced to a mandatory term of five years in jail, with a minimum of three.

Today, Greens senator Sarah Hanson-Young will challenge the consensus of the major parties by introducing a private member's bill to remove mandatory minimum sentences for people-smuggling offences, and enable the courts to distinguish between the architects of the trade and the incidental players.

While Hanson-Young's Migration Amendment (Removal of Mandatory Minimum Penalties) Bill would appear doomed, it will prod the conscience of MPs on both sides of the Parliament who agree with human rights advocates and judges that the mandatory jail terms for those who crew asylum seeker boats are problematic, to say the least, on several fronts.

First, is the impact on the individuals concerned, which has prompted no fewer than 10 judges to describe the mandatory penalty as unnecessarily ''harsh'', ''severe'' and out of line with sentencing requirements in all Australian jurisdictions.

Aside from the effect on the 200 Indonesians who have already been sentenced and more than 200 now before the courts, is the impact on their families. Almost invariably, the person in jail is the main breadwinner of his family and, with him out of play for up to five years, the pressure is on siblings or offspring to leave school and help eke out a living. Poverty is compounded.

Sarah Westwood is one of the lawyers from Victorian Legal Aid, the organisation that represents accused in this state who face serious charges and have no assets or income. She is representing several of the more than 50 Indonesians who are now imprisoned at the Metropolitan Remand Centre awaiting trial.

''They are, without exception, extremely anxious about where they are and the fact that they can't help their families,'' Ms Westwood tells The Age. ''When we talk to them about the mandatory minimum sentence they face if convicted, they are inconsolable.''

Apart from the language barrier inside the prison are a host of logistical challenges, from being strip-searched before and after being visited, to the lack of rice in the prison diet, to the cost of phone calls to families in remote locations, where mobile access is costly and often hit and miss.

Those awaiting trial are able to earn around $30 a week working in prison industries or in the kitchen, the laundry, the garden or as cleaners. But this can be spent in a single call home. Some are so desperate for rice, which is only rarely served in prison meals, that they spend some of their earnings buying it at the prison canteen. Others want to send the money to their families, and officials say they are working to make this easier.

Wirawan Kartono, the Indonesian vice-consul in Melbourne, is a regular visitor at the remand centre. ''They feel depressed and they question to us why are they being held,'' he says. ''We try to explain that what they did was illegal, but they say they didn't know it was illegal. They say they were asked by someone (to crew the boats) and, when the boat was at sea, that person always had some reason to leave the boat.''

This raises the second troubling aspect: the question of whether the mandatory terms are, as Attorney-General Nicola Roxon maintains, worthwhile as ''part of our armoury'' in deterring boat arrivals.

During a recent inquiry by a Senate committee, several parties argued there was no evidence that locking up impoverished Indonesians had done anything to stop the boats, not least because the supply of young, gullible and desperately poor males like Budi across an Indonesian archipelago with a population of 245 million is unlimited.

In a concession to this view, the committee recommended that the Attorney-General's Department review the operation of people-smuggling offences ''to ensure these offences continue to effectively deter people smuggling''.

In the meantime, there is a strong case in logic that the approach does nothing to promote a regional solution on asylum seekers. ''We hear a lot about the need for regional co-operation, and what I see is anything but that,'' says Senator Hanson-Young. ''There seems to be no evidence of genuine co-operation and, if anything, we seem to be shooting ourselves in the foot.''

While Indonesian officials stress their respect for Australia law and their determination not to interfere in our system of justice, they make plain their concern for citizens who, in many cases, are as much victims of the trade and the asylum seekers.

''We are very much concerned about hundreds of Indonesian nationals, including possibly minors, held in Australia suspected of people-smuggling ventures,'' says Andalusia Tribuana Tungga Dewi, head of consular affairs at the Indonesian embassy. ''We are all aware that most of them do not have major roles in the boat, as in reality they are victims of the real smugglers. The involvement of our nationals in people-smuggling activities was also mainly pushed by poverty.''

Indeed, of more than 350 people charged with people-smuggling offences by March last year, only six were considered organisers. This highlights another area of contention - the removal of any ability by the judge to factor in individual circumstances when sentencing those found guilty of aggravated people smuggling.

''Mandatory sentencing is the antithesis of judicial discretion,'' is how Michael Rozenes, the Chief Judge of the County Court, puts it. ''All judges that I know of are opposed to it. Full discretion is the most satisfactory way of running a sentencing regime. Mandatory sentencing attacks the fundamental principles of judicial independence and judicial discretion in sentencing.''

Catherine Branson, president of the Australian Human Rights Commission, says the need for judicial discretion is all the greater because ''there is reason to think it is vulnerable people with very limited involvement, if any, in people smuggling who are the ones that face the charges''.

A former Federal Court judge, Ms Branson says it is well known that the crews on boats carrying asylum seekers are often larger when they leave Indonesia than when they arrive in Australian waters. ''There is reason to believe that the explanation for this is that those with the greatest culpability and involvement in the organising of the people smuggling are the ones who get off and return to Indonesia - and are not there to be detained by Australian officials,'' she says.

Mandatory sentencing also has a bearing on another issue that should weigh on the minds of policymakers - the impact of so many trials on a justice system that is always under strain.

As Chief Judge Rozenes points out, the certainty of a five-year jail term takes away any incentive for the accused to plead guilty, which means cases are more likely to go to trial (and, because of the need for interpreters, trials are likely to take longer).

In Victoria, 56 Indonesians are being held at the Metropolitan Remand Centre and the Port Phillip Prison and 27 trials are scheduled in the County Court, taking the equivalent of two judges out of play for six months.

''We operate on the basis that somewhere between 70 and 80 per cent of our accused in the general criminal list will plead guilty, so the system operates on the basis that you only trial about 20-30 per cent,'' the Chief Judge explains.

''In these cases, I suspect, and remember we've had no experience to date with mandatory sentencing in this court, most people will take their chances and have a trial. In other words, there is no inducement for people to plead guilty.''

Mr Rozenes says he is confident that his court can manage the additional workload without adversely impacting on other cases. But he adds: ''I would be concerned if this was an ongoing exercise without additional resources.''

A final area of concern is the reality that many of those who have been arrested are children. More than 100 minors have been returned to Indonesia, many of them after pro bono lawyers took the trouble to travel to their villages and obtain proof of their ages. In one case, it was established that a boy was 14 when he was apprehended, yet he spent 21 months in immigration detention and prison before the Commonwealth Director of Public Prosecutions discontinued proceedings and he was allowed to go home.

According to the Indonesian embassy, about 25 of those now in custody - in jails or immigration detention centres - maintain they are under 18, including one who is in immigration detention in Melbourne. Brisbane lawyer Mark Plunkett, who first demonstrated that children were being imprisoned with adults, is about to return to Indonesia to gather evidence that another who is serving the five-year term is, in fact, a boy.

Mr Plunkett believes the refusal of Australian police to obtain evidence of suspects' ages by travelling to Indonesia with the consent of Indonesian authorities and the reliance of police on discredited wrist X-rays to determine the age of suspects should be the subject of a royal commission.

''What we have seen in these cases is all the ideals of a civilised society - reason, evidence, morality and logic - thrown out the window,'' he tells The Age.

In the absence of a royal commission, the Human Rights Commission is investigating the treatment of those who say they are children, and focusing on the reliance of police on wrist X-rays that have been shown to be anything but reliable.

Victoria Legal Aid has urged the inquiry to recommend that the Crown, rather than defence lawyers, should bear the onus of proving an accused is 18 or older, that time limits should be introduced for bringing charges against boat crews, and that compensation should be paid to children who have been detained for lengthy periods before charges were withdrawn.

While a spokesman for Ms Roxon declined to respond in detail to the arguments outlined above, he told The Age: ''In addition to tough sentencing, our deterrents include, for example, communications campaigns in Indonesia that aim to educate locals about the risks of getting involved in people smuggling and the offences that apply to people smugglers. The government keeps a watching brief on all our deterrence methods.''

In the meantime, the ordeal continues for Budi and the others awaiting trial. One of them, we will call him Agus, breaks down when he talks through his lawyer about his wife's struggle to feed their three children. The youngest, he recently discovered, is suffering a form of paralysis and can't sit up.

Agus says he is ashamed because his wife has told him that their neighbours are helping to feed his children. He has heard that the other children in the village are making fun of his kids, saying they've got no dad and no money.

Budi's distress is exacerbated because he hasn't been able to speak to his parents for two months. He is worried about their failing health and the 15-year-old brother he was supporting through school before he said yes to a stranger at a Jakarta bus stop.

''I'm the mainstay, but I'm not there to help,'' he says.

Boat crews facing legal 'black hole'

The Age
Michael Gordon
February 21, 2012

Australia is breaching international human rights law by detaining poor Indonesian fishermen for an average of 161 days - 20 times the maximum for suspected terrorists - before they are charged with people smuggling offences.

The Australian Federal Police has revealed that the average is more than 70 days higher than its ''benchmark'' for charging people who are detained after crewing vessels carrying asylum seekers.

The AFP's deputy commissioner, operations, Andrew Colvin, told a Senate committee last week that the average was spread over four years and that the longest anyone currently awaiting being charged has been detained is 145 days.

Rachel Ball, the policy director of the Human Rights Law Centre, said yesterday that those who had been detained included children as young as 12, who were often tricked into working as crew of boats carrying asylum seekers.

''This is the kind of draconian practice you might expect to find in Zimbabwe or Burma,'' Ms Ball told The Age. ''Detaining people without charge for months on end has no place in a modern democracy like Australia.''

Under international law, a person may be detained prior to charge for 48 hours, she said, though Australian counter-terror laws allowed suspected terrorists to be held for a maximum of eight days before charges are laid.

Ms Ball said the Indonesians found themselves in a kind of ''procedural black hole'', where they were placed in immigration detention because they did not have a visa, but had no access to legal aid until charges were laid or the assistance afforded to those seeking asylum.

The Law Centre has urged that the Indonesians should have access to legal aid from the outset, their cases should be subject to judicial review and a cap should be placed on the time they are detained before charges are laid or they are allowed to go home.

Greens senator Sarah Hanson-Young, who has introduced legislation to end mandatory five-year jail terms for Indonesian crew members, said she was alarmed that the detention time was almost twice the AFP benchmark.

''We're also very concerned that the AFP has confirmed there are young people who claim to be minors who are being kept in adult prisons because their ages are in dispute,'' she said.

''Unless the government can confirm they're an adult, no child should ever be in an adult prison."

In response to questions from Senator Hanson-Young, Mr Colvin said the period in detention for those awaiting charges was ''impacted by a range of things over Christmas'' when the courts were closed. ''But I reiterate: our benchmark is 90 days - that is what we aim for - and 161 is the current average, though, spread over those four years,'' he said.

Australia detaining Indonesian children for up to 735 days until charges dropped

Media Release
March 16, 2012
Senator Sarah Hanson-Young
Immigration/Citizenship etc

Senate inquiry hears Australia detaining Indonesian children for up to 735 days until charges dropped

A Senate inquiry has today heard Australia keeps detaining Indonesian children contrary to international obligations, with one imprisoned for 735 days before being released after authorities conceded they were a child.

"I'm outraged some Indonesian children have languished in Australian detention centres and prisons for at least a year because authorities didn't believe they were children, and didn't go to Indonesia to find out," Greens' immigration spokesperson, Sarah Hanson-Young, said.

"Surely the price of flying our Jakarta-based AFP officers to remote Indonesian fishing villages to verify children's identities is far more ethical and cost-effective than locking up these children for months and years on end?

"The inquiry into my Crimes Amendment (Fairness for Minors) Bill also heard Australia has breached the Convention on the Rights of the Child by denying them legal representation. Australians would be rightly appalled if an Australian child in an overseas prison was denied timely legal advice, as we are doing to Indonesian children.

"The Greens' bill intends to change the law to put the onus on Australian authorities to prove that someone is an adult and scraps the use of discredited wrist x-ray techniques to determine age.

"The Law Council of Australia has today strongly backed my complementary Migration Amendment (Removal of Mandatory Minimum Penalties) Bill which abolishes the mandatory five-year jail terms for people convicted of being crew of asylum seeker boats. The council told the inquiry the rising rate of acquittals of such people comes as Australian juries learn how insignificant the accused are in people smuggling syndicates.

"Every submission received and witness who testified today, bar the government and its agencies, backs the Greens' two bills. The Migration Act must be changed because it is unfairly punishing people, including children, who are the bottom of the people smuggling chain and not those at the top.

"We have to amend laws which are not deterring people and are treating crew members as disposable as the wooden boats which reach our shores."

Audio from Sarah's Canberra doorstop into her two bills on removing Indonesian children from detention and abolishing mandatory sentences.

Judges contest mandatory penalties for aides of people smugglers

Sydney Morning Herald
Geesche Jacobsen
March 16, 2012

Judges say they have been forced to impose excessive, arbitrary and ''manifestly unjust'' sentences on people smugglers because of mandatory three-year minimum jail terms.

The claim is in a submission by the Judicial Conference of Australia - a body representing judges and magistrates - to a Senate inquiry.

The inquiry, which is examining a Greens proposal to abolish the mandatory penalties, will hold public hearings today.

Submissions show the number of people acquitted is rising and less than half of people smuggling cases since January 2011 produced convictions. The accused often spent 12 to 18 months in prison before trial. All but three of the 208 awaiting trial were crew members, not organisers.

Barrister Phillip Boulten, SC, who last month represented an alleged people smuggler who was acquitted, says juries may be increasingly aware of the mandatory minimum sentences.

''There's a sneaking suspicion that they are exercising some sympathy in favour of the accused because they think in their own way they have done enough time.''

Mr Boulten, who will represent the Law Council at the hearings today, said most of those charged had little understanding of the scope of their involvement in people smuggling.

''The mandatory penalty is meant to send a [deterrent] signal. It is entirely unlikely to get it through to ordinary impoverished fishermen.''

The council was not suggesting leniency but opposed unduly harsh penalties for those ''many steps removed from the organisers of the ... trade''.

Children detained with 'the worst of the worst'

The Age
Kirsty Needham
March 17, 2012

Indonesian children caught on people smugglers' boats are spending up to 735 days in prison in Australia as police try to determine their age, a Senate committee has heard.

This is despite an agreement with the Indonesian government that children should not face Australia's harsh mandatory sentencing laws for people smuggling and should be immediately returned home.

The Australian Federal Police yesterday blamed delays of up to 301 days before crew are even charged with people smuggling offences on shortages of translators needed to interview witnesses.

Law firm O'Briens has defended 15 Indonesian children in court in the past six months. Peter O'Brien told The Saturday Age: ''What we have demonstrated with each of these 15 kids is that they are not over 18. But each of them has been in detention for more than 12 months, meaning in detention with rapists, murderers, paedophiles and the worst of the worst. This is in breach of international conventions.''

Mr O'Brien said his firm had to send its own staff to remote Indonesian villages to gather basic evidence of the teenagers' ages. He questioned why this task was not being performed by a government agency. Instead, the federal police have been using controversial wrist X-rays in court to ascertain age.

Greens senator Sarah Hanson-Young said: ''Surely the price of flying our Jakarta-based AFP officers to remote Indonesian fishing villages to verify children's identities is far more ethical and cost-effective than locking up these children for months and years on end.''

The committee heard that of 129 children returned to Indonesia, 37 had been assessed using wrist X-rays.

Mr O'Brien said the mandatory sentences should be abolished because the teenage crew who are lured onto boats on false pretences ''are being used and abused by people smugglers and are just as much the victims''.

Meanwhile, Opposition Leader Tony Abbott yesterday insisted he would turn asylum-seeker boats back to Indonesia if he became prime minister, despite strong comments from Indonesian Foreign Affairs Minister Marty Natalegawa this week that the Coalition's policy was ''impossible'' and ''not advisable''.

Mr Abbott told Nine: ''Let's not forget these are Indonesian-flagged, Indonesian-crewed, Indonesian-home-ported vessels that are coming from Indonesia. Of course they can go back ... They have done it before, they can do it again.''

Immigration Minister Chris Bowen said Mr Abbott was in denial: ''The reality is that without Indonesian support and a formal agreement, it is impossible to implement this policy.''

People smuggling laws in the dock

Mark Dodd
The Australian
March 23, 2012 12:00AM

A Brisbane District Court judge yesterday directed a not guilty verdict during a jury trial of an alleged Indonesian asylum-seeker crewman before issuing a scathing indictment of the government's people-smuggling legislation.

After ordering 23-year-old Albah Ruliilmi be set free, judge Milton Griffin blasted the lack of discretionary sentencing powers available to judges and magistrates hearing people-smuggling cases.

His criticism followed two not guilty verdicts on Wednesday in the Brisbane Supreme Court during jury trials of two other alleged people-smugglers.

Before deciding the case, Judge Griffin told the jury it was important to note that Mr Ruliilmi, a cook/crewman from eastern Java, had already served more than two years in jail.

"In this legislation, the judges are deprived of the right to pass any particular sentence.

"Judges are directed by the law so there is a minimum sentence of three years.

"So for someone in the defendant's position, he would have been required to spend three years in jail had there been proof.

"So the lowliest of the crew members or the most money-grabbing of sea captains who direct the voyage -- they're all rather lumped by the legislation into the same boat," he said.

Judge Griffin told the jury they could "draw their own conclusions" on what the legislation did for the right of judges to make discretionary decisions on the roles of individual crewmen involved in people-smuggling offences.

The commonwealth had failed to prove that any of the crew had prior knowledge they were shipping to Australia, he said in his summing up.

The Migration Act 1958 contains a range of serious people-smuggling offences with mandatory minimum penalties applying to ventures coming to Australia.

The District Court ruling by Judge Griffin is part of a wave of acquittals of alleged people-smugglers.

It comes as lawyers from across the country prepare to meet in Melbourne in April for a major conference to discuss defence strategy ahead of 27 pending criminal trials involving people-smuggling.