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Thursday, 16 May 2013
Page: 2805


Senator WONG (South AustraliaDeputy Leader of the Government in the Senate and Minister for Finance and Deregulation) (15:35): I present five government responses to committee reports as listed at item 14 on today’s Order of Business. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.

Leave granted.

The documents read as follows—

Australian Government response to the Senate Standing Committee on Finance and Public Administration’s Report on Annual Reports No. 1 of 2012, tabled on 15 March 2012.

Recommendation of the Senate Standing Committee on Finance and Public Administration:

Recommendation 1

2.52 The committee recommends that a list of all departments and agencies required to report on social exclusion outcomes should be published on the social inclusion website.

Australian Government response:

Agree. A list of the departments reporting on social inclusion strategic change indicators was published on the Government’s social inclusion website (www.socialinclusion.gov.au) on 13 December 2012.

Australian Government response to the Legal and Constitutional Affairs Legislation Committee report: Crimes Amendment (Fairness for Minors) Bill 2011

DECEMBER 2012

Background

On 25 November 2011, the Senate referred the Crimes Amendment (Fairness for Minors) Bill 2011 to the Legal and Constitutional Affairs Committee for inquiry and report. The Committee held a public hearing on 16 March 2012, and released its report on 4 April 2012, with four recommendations. Senator Sarah Hanson-Young prepared a dissenting report, with three recommendations.

The Australian Government Attorney-General's Department (AGD), in collaboration with the Commonwealth Director of Public Prosecutions (CDPP) and the Australian Federal Police (AFP), made a joint submission to the inquiry (the Commonwealth submission). Commonwealth officers also gave evidence at the Committee hearing.

The Commonwealth's submission recommended that the Senate should not pass the Bill. In summary, Commonwealth agencies considered the Bill's proposal to impose strict timeframes for age determination and laying charges would not be practical or achievable. The limitations on laying charges would also be inconsistent with section 15B(1)(a) of the Crimes Act 1914, which permits the Commonwealth to commence prosecutions for serious Commonwealth offences at any time.

Further, Commonwealth agencies considered the proposed presumption of age and associated detention arrangements would jeopardise the Commonwealth's ability to flexibly manage detainees on a case-by-case basis, taking into account a range of factors in accordance with 'the best interests of the child' principle under the United Nations' Convention on the Rights of the Child.

This paper sets out the Australian Government response to the Senate Committee's majority and dissenting reports.

Government Response: Majority Report

Recommendation 1

The committee recommends that the Australian Government review the Australian Federal Police ' s procedural and legislative requirements in dealing with persons suspected of people smuggling offences, with a view to facilitating the prompt laying of charges where appropriate.

Agreed in principle.

The AFP has worked hard to reduce the amount of time taken to investigate people smuggling offences and prepare a brief of evidence, setting a benchmark of 90 days to lay charges.

As a result of continuing efforts to reduce time in detention, the AFP advises that for the period from 1 January 2012 to 12 November 2012, the average period of investigation from the date of formal referral of crew by DIAC to the date of charging by the AFP is 74 days.

The Government is committed to further reducing delays in the investigation and prosecution of people smuggling offences. Commonwealth agencies are developing solutions to address delays, including obtaining identity documents from Indonesian consular officials in the first instance, pending a mutual assistance request. These documents may then inform the AFP's decision about whether to give a person the benefit of the doubt about their age, prior to laying charges.

Unfortunately, there are often delays to the investigation process caused by environmental factors, which are difficult to avoid. For example, weather conditions may cause delays in conveying items of evidence, such as mobile phones and GPS equipment, which require forensic analysis by experts and equipment on mainland Australia. There may also be delays in securing interpreters of specific dialects required for interviews or investigations.

In addition, passengers on board people smuggling vessels are sometimes initially unable or unwilling to provide statements, which are necessary to proceed with most people smuggling prosecutions.

Recommendation 2

The committee recommends that the Australian Government introduce legislation to expressly provide that, where a person raises the issue of age during criminal proceedings, the prosecution bears the burden of proof to establish that the person was an adult at the time of the relevant offence.

Agreed.

Under the Migration Act 1958, penalties for aggravated people smuggling offences do not apply to persons where it is 'established' on the balance of probabilities that they are under the age of 18 years. However, the legislation does not specify whether the prosecution or the defence bears the burden of proof.

There has been some inconsistency in the courts as to who bears the burden of proof. However, in practice, the CDPP has assumed the obligation of establishing whether the person is a minor or an adult, in cases where the defendant raises age as an issue.

The Government will consider amendments to the Migration Act that would codify current practice by specifying that the prosecution bears the onus of proof in establishing age, where age is contested during a prosecution.

Recommendation 3

The committee recommends that the Australian Government review options to support the capacity of the legal representatives of persons accused of people smuggling offences who claim to be underage at the time of the offence to gather evidence of age from their place of origin.

Disagree.

Commonwealth agencies facilitate access to legal aid by accused people smugglers as soon as the AFP requests to interview them. Commonwealth funding for legal aid in each State and Territory is provided through the Expensive Commonwealth Criminal Cases Fund. As part of this funding, legal aid representatives are entitled to claim the costs of reasonable disbursements, including costs associated with calling expert witnesses and gathering evidence of a defendant's age in their country of origin. To date, all costs claimed by legal aid commissions, including the costs of travel to Indonesia to collect identity documents, have been approved for reimbursement.

Recommendation 4

The committee recommends that the Senate should not pass the Bill.

Government response: Dissenting Report

Recommendation 1

The Bill be amended to require facilitation of timely access to legal advice, and that regulations require that children are afforded communication with their family.

Agreed in principle.

To address the issue of clients having access to legal advice in a timely fashion, the AFP has amended its practises concerning minors and provides those accused of people smuggling offences the opportunity to speak with legal representatives at the first available opportunity following referral from DIAC.

People smuggling crew held in immigration facilities are permitted to make domestic and international phone calls, and are allowed to try several different numbers until they make contact with their family or friends. These calls last approximately two minutes, to enable them to let the receiver know of their wellbeing. Individuals are permitted further additional time on a case by case basis. Due to poor mobile coverage in some countries, telephone contact is not always possible, which is typically understood by those trying to contact people in particular countries.

Internet access is also provided in immigration facilities after people are accommodated.

The only time phone calls are not attempted on the day of arrival is when a significant number of individuals arrive on the same day, as there is no distinction in the allocation of phone calls between people smuggling crew and other passengers arriving by boat. In situations like this, phone calls are generally completed over two or three days. DIAC considers these phone calls to be very important and it is a priority for these calls to be made as soon as possible.

The States and Territories are responsible for the management of individuals on remand or serving sentences for Commonwealth offences. This includes facilitating communication between detainees with both their families and legal representatives. All jurisdictions allow domestic phone calls, and most allow international calls. A table comparing the facilitation of contact by State and Territory correctional facilities between prisoners and their family or legal representatives is at Attachment A .

Recommendation 2

Item 3 of Schedule 1 of the Bill be amended so that proposed new subsection 3ZQAA(3) of the Crimes Act 1914 provides that the 30 day limit on bringing an application to a magistrate to determine a person ' s age applies from whichever is first of:

(a) The date the person is taken into immigration detention; or

(b) The date on which the person first asserts that he or she was a minor at the time of the alleged offence.

Disagree.

The recommended amendment does not change the practical effect of proposed new subsection 3ZQAA(3) in its current form.

Currently, the proposed subsection requires investigating officials to make an application to a magistrate to determine a person ' s age within 30 days of the person being taken into immigration detention. The recommended amendment to the subsection would require the 30 day timeframe to commence on either the date the person is taken into immigration detention, or the date on which the person first claims to be a minor; whichever is first.

In practice, a person will very rarely (if ever) be in a position to claim to be a minor before being taken into immigration detention. This is because immigration detention of people smuggling crew under section 189 of the Migration Act 1958 commences at the point of interception by Border Protection Command (BPC) personnel. Unless a member of a people smuggling crew is able to communicate their age to BPC personnel (or potentially to any Australian Government official) at least one day or more prior to their interception, the commencement date for the application period will always be the date of interception. Accordingly, even if earlier notification of the person ' s claim was possible, the timeframe would be almost identical.

As such, the Commonwealth ' s concerns with the provision as set out in the joint submission are still applicable. In particular, the reference to ' magistrate ' alone excludes the possibility of a superior court judge hearing an application. Further, the proposed provision does not clarify the meaning of ' application ' , which could be referring to the filing of an originating application, the age determination hearing before a magistrate, or both.

In addition, the period of 30 days to conduct an age investigation and make an application to a magistrate is impractical and will be, in some cases, impossible to comply with. The provision also retains the presumption of age in the defendant ' s favour, which has serious implications where the person is an adult and who, as a result of his claim alone, will automatically be required to be detained with minors.

The Commonwealth notes that other significant issues of concern about the Bill ' s remaining provisions, as set out in the Commonwealth ' s joint submission, have not been addressed by the recommendations made in the dissenting report.

 

Recommendation 3

That the Bill be passed by the Senate.

Attachment A: State and Territory correctional services facilitation of communication between prisoners and their families, and between prisoners and legal practitioners

NSW

Vic

QLD

WA

SA

NT

Tas

ACT

Families

 

Interpreter

*

*

*

*

* (not consistently available)

*

Domestic phone

* (3 per week free)

*

*

* (five free/week)

* (charged)

*

*

International phone

* (up to 10 mins, charged)

*

*

* (two ten minute calls per week)

* (charged)

(may be facilitated by correctional manager)

*

Email

 

* (at superintendent's discretion)

Letters

* (2 per week)

 

*

*

*

Audio visual link

*

 

* (at superintendent's discretion)

Visits

*

 

*

*

*

Legal practitioners

 

Visits

* (additional to private visitor allowance)

* (additional to private visitor allowance)

*

*

* (unlimited)

* (6 days a week)

Embassy/Consulate assistance available

*

*

*

*

*

Fax

*

 

Phone

* ( free)

*

 

*

*

 

 

 

 

 

 

 

 

 

 

 

 

Senate Legal and Constitutional Affairs Legislation Committee Report

Crimes Legislation Amendment (Slavery, Slavery -like Conditions and People Trafficking) Bill

March 2013

INTRODUCTION

On 19 June 2012, the Crimes Legislation Amendment (Slavery, Slavery -like Conditions and People Trafficking) Bill (the Bill) was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) for inquiry and report by 13 September 2012.

The Committee held a public hearing in Canberra on 29 August 2012.

The Bill was passed by the Senate on 27 February 2013.

BACKGROUND

This Bill would amend the existing people trafficking, slavery and slavery-like offences contained within Divisions 270 and 271 of the Criminal Code , the reparations provision in Part IB of the Crimes Act 1914 , and make consequential amendments to the Proceeds of Crime Act 2002 , the Migration Act 1958 and Telecommunications (Interception and Access) Act 1979 as follows:

establish new offences in the Criminal Code of forced marriage and harbouring a victim, as well as standalone offences of forced labour and organ trafficking

seek to ensure that the slavery offence applies to conduct which renders a person a slave, as well as conduct involving a person who is already a slave

extend the application of the existing offences of deceptive recruiting and sexual servitude so they apply to non-sexual servitude and all forms of deceptive recruiting

increase the penalties applicable to the existing debt bondage offences, to ensure they are in line with the serious nature of the offences

broaden the definition of exploitation under the Criminal Code to include all slavery-like practices

amend the existing definitions to ensure the broadest range of exploitative conduct is criminalised by the offences, including psychological oppression and the abuse of power or taking advantage of a person's vulnerability, and

increase the availability of reparations to victims.

Recommendation 1

3.84 The committee recommends that the Attorney-General ' s Department revise and reissue the Explanatory Memorandum to clarify that the proposed slavery and servitude offences in the Bill apply to circumstances of slavery and servitude within intimate relationships (including marriage and de facto relationships).

On 8 October 2012, the Government tabled an addendum to the Explanatory Memorandum for the Bill in the Senate, which takes this recommendation into account. The addendum makes it clear that the new offences apply irrespective of whether the relevant conduct occurs in the victim ' s public or private life. Provided the elements of the offence are established, it is immaterial whether the victim and the offender are married or in a de facto relationship.

A copy of the addendum to the Explanatory Memorandum for the Bill is attached.

Recommendation 2

3.88 The committee recommends that the Australian Government further investigate the establishment of a federal compensation scheme for victims of slavery and people trafficking.

Australia ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), which supplements the United Nations Convention against Transnational Organized Crime , in 2005. The Australian Government takes its international obligations, including those under the Trafficking Protocol, very seriously.

Article 6.6 of the Trafficking Protocol states that each Party shall ' ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered ' . Under Australia ' s domestic legal system, compensation for victims of crime is generally a matter for States and Territories. Each State and Territory has a victims ' compensation scheme, which may be available to victims of people trafficking, slavery and slavery -like practices. A number of these victims have accessed compensation from these State and Territory schemes.

As such, the Government ' s view is that Australia has implemented measures that allow victims to obtain compensation, in accordance with Article 6.6 of the Trafficking Protocol. Given these considerations, the Government does not support establishing a Commonwealth victims ' compensation scheme at this time.

Recommendation 3

3.95 The committee recommends that the Australian Government review the People Trafficking Visa Framework and the Support for Victims of People Trafficking Program, and consider establishing an ongoing visa and access to victim support mechanism which is not conditional on a victim of people trafficking providing assistance in the criminal justice process.

Australia ' s anti-people trafficking strategy (the strategy) is designed to ensure a balance between victim welfare and criminal justice processes. Prosecutions for people trafficking, slavery and slavery -like practices rely heavily on witness assistance and testimony, and the complete de-linking of witness assistance and visa provisions from the criminal justice framework may affect the success of trafficking -related prosecutions.

The Government is committed to the continuous improvement of the Support for Trafficked People Program (the Support Program), aiming to provide a flexible, compassionate victim-focused program that is tailored to the individual needs of each client. The new funding agreement, commencing from 1 July 2012 with the current service provider, will provide greater flexibility and accountability in the delivery of the Support Program, to meet the individual needs of clients.

Over the life of the strategy, significant enhancements have been made in response to community sector feedback. In particular, a number of changes were made to the strategy in 2009 following extensive consultation with the community. The changes, which are outlined below, are in line with international best practice and the UN High Commissioner for Human Rights ' Recommended Principles and Guidelines on Human Rights and Human Trafficking:

enabling all identified suspected victims of trafficking, slavery and slavery-like practices who are unlawful non-citizens to access the Bridging F visa (BVF) irrespective of whether they are assisting police, and extending the validity of that visa from 30 days to 45 days

increasing the initial stage of assistance under the Support Program from 30 to 45 days

reducing the Witness Protection (Trafficking) visa process from two stages to one stage by removing the Witness Protection (Trafficking) (Temporary) visa

including offshore immediate family members in the offer of a Witness Protection (Trafficking) (Permanent) visa

lowering the certification threshold for the Attorney-General to issue a Witness Protection (Trafficking) Certificate from a 'significant contribution' to a 'contribution'

a period of up to 90 days of assistance is now available to victims who are willing but not able to assist with an investigation or prosecution for an offence of trafficking in persons, and

all individuals receive an additional 20 days of support as they leave the Support Program.

To monitor and resolve operational matters, respond to new and emerging issues, and continue to explore ideas for enhancement of the strategy, the Australian Government has established an Operational Working Group, which is comprised of the Attorney-General's Department, the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions, the Department of Families, Housing, Community Services and Indigenous Affairs, and the Department of Immigration and Citizenship. The Operational Working Group meets approximately every six weeks.

In addition, the strategy is also regularly reviewed externally by a number of bodies, including through the United Nations. In 2011 the strategy was reviewed both by the UN Special Rapporteur on Trafficking in Persons, especially women and children, and through the Universal Periodic Review process where United Nations Member States' human rights records are reviewed once every four years. Both of those reviews recognised Australia's role as a leader in regional efforts to combat trafficking.

Given these processes, and the extensive consultation on both the Visa Framework and the Support Program which led to enhancements in 2009, the Government does not propose to formally review the Visa Framework or the Support Program at this stage.

Recommendation 4

3.96 Subject to Recommendation 1, the committee recommends that the Senate pass the Bill.

The Australian Government notes this recommendation.

ATTACHMENT

CRIMES LEGISLATION AMENDMENT (SLAVERY, SLAVERY-LIKE CONDITIONS AND PEOPLE TRAFFICKING) BILL 2012

ADDENDUM TO THE EXPLANATORY MEMORANDUM

(Circulated by authority of the Attorney-General,

the Hon Nicola Roxon MP)

THIS MEMORANDUM TAKES ACCOUNT OF RECOMMENDATIONS MADE BY THE SENATE LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

REPORT TABLED ON 13 SEPTEMBER 2012

NOTES ON CLAUSES

Schedule 1 — Criminal Code Amendments

Item 12

Section 270.5 Servitude offences

After "The new offences apply to all forms of servitude, regardless of whether the servitude is sexual in nature." on page 16, insert, "The new offences apply irrespective of whether the proscribed conduct occurs in the victim's public or private life. For example, provided the elements of the offence are established, it is immaterial whether the victim and the offender are married or in a de facto relationship."

Section 270.6A Forced labour offences

After "Whether the offence applied in a particular circumstance would be determined by the nature of the relationship between the victim and their 'employer', and not by the type of activity performed, however hard or hazardous, or the legality or illegality of the work under Australian law." on page 20, insert, "The new offences apply irrespective of whether the proscribed conduct occurs in the victim's public or private life. For example, provided the elements of the offence are established, it is immaterial whether the victim and the offender are married or in a de facto relationship."

Section 270.7B Forced marriage offences

After "Where a person has been transferred, sold or inherited into a marriage with no right to refuse, this may also amount to an offence of slavery." on page 25, insert, "Where a person freely and fully consented to enter into a marriage, but was later coerced, threatened or deceived into remaining in the marriage, or the powers attaching to the right of ownership were exercised over the person, this may also amount to a servitude or slavery offence, or a domestic violence offence under State and Territory legislation."

Australian Government response to the

Senate Legal and Constitutional Affairs References Committee report:

Detention of Indonesian minors in Australia

DECEMBER 2012

BACKGROUND

On 10 May 2012 the Senate referred the matter of detention of Indonesian minors in Australia to the Legal and Constitutional Affairs References Committees for inquiry and report.

The inquiry considered:

(a) whether any Indonesian minors are currently being held in Australian prisons, remand centres or detention centres where adults are also held, and the appropriateness of that detention;

(b) what information the Australian authorities possessed or had knowledge of when it was determined that a suspect or convicted person was a minor;

(c) whether there have been cases where information that a person is a minor was not put before the court;

(d) what checks and procedures exist to ensure that evidence given to an Australian authority or department about the age of a defendant/suspect is followed up appropriately;

(e) the relevant procedures across agencies relating to cases where there is a suggestion that a minor has been imprisoned in an adult facility; and

(f) options for reparation and repatriation for any minor who has been charged (contrary to current government policy) and convicted.

The Attorney-General's Department (AGD) made a submission to the inquiry in collaboration with the Australian Federal Police (AFP). The Commonwealth Director of Public Prosecutions (CDPP) and the Department of Immigration and Citizenship (DIAC) also lodged submissions.

Officers from AFP, AGD, CDPP and DIAC appeared before the committee on 24 August 2012.

The Committee reported on 4 October 2012, providing seven recommendations to the Australian Government. The Chair of the Committee also presented a minority report with fifteen recommendations. This document provides a coordinated Government response to the inquiry recommendations.

Government Response: Majority Report

Recommendation 1

Subject to the advice of the Office of the Chief Scientist regarding the utility of wrist X -rays as an age assessment tool, and noting evidence received by the committee raising significant doubts about this procedure, the committee recommends that the Australian Government consider removing wrist X-rays as a prescribed procedure for the determination of age under 3ZQB of the Crimes Act 1914 and regulation 6C of the Crimes Regulations 1990.

Agreed in principle.

On 11 January 2012 the Chief Scientist, Professor Ian Chubb AC, advised AGD on the available scientific methods for determining chronological age. The advice confirmed that wrist X-rays did not allow for precise estimation of chronological age; that results vary with ethnic and socio-economic conditions; and that there were ethical considerations.

The 'observed variation' of two years for wrist X rays, identified by the Chief Scientist, further indicated that the science of wrist X-rays and statistical analysis from that science was a contested issue that required further expert consideration.

Between January and June 2012, AGD consulted further with the Office of the Chief Scientist on a number of age determination issues. This included seeking assistance on identifying available experts to assist the Commonwealth with the science of age determination, in particular to critically analyse the scientific and statistical basis for using wrist X-rays as an age determination procedure.

On 29 June 2012, the Office of the Chief Scientist provided AGD with advice relating to statistics and wrist X-rays from Professor Patty Solomon. In her report, Professor Solomon concluded that there is not enough scientific data in either the Greulich and Pyle Atlas or the TW3 Manual for those experts to draw sufficiently precise inferences of chronological age for young Indonesian males.

In order to address this issue, AGD is considering options for legislative amendments to remove wrist X-rays be removed as a prescribed procedure for age determination in the Crimes Act and Crimes Regulations.

Recommendation 2

The committee recommends that the Australian Government formalise arrangements for the Government of Indonesia to expedite the process of gathering evidence in Indonesia relating to the age of individuals who claim to be minors and are detained in Australia suspected of people smuggling offences.

Agreed.

The Foreign Evidence Act 1994 provides a mechanism for adducing material received from a foreign country in response to a mutual assistance request. The process can be complicated where a request is made to a country where government records, including birth, marriage and other identity records, are not centrally held. Even where a mutual assistance request is urgent and prioritised, it can take up to several months to receive the material sought. This mutual assistance process is assisted by the bilateral mutual assistance treaty with Indonesia, the Treaty between Australia and the Republic of Indonesia on Mutual Legal Assistance in Criminal Matters, done at Jakarta on 27 October 1995.

Since July 2011, the AFP has sought documents from the Indonesian National Police (INP) on a police-to-police basis. Recently the AFP commenced seeking documents from Indonesian consular officials in Australia. Where documents received through these processes indicate the person may be a minor, the AFP considers this material in deciding whether to give the person the benefit of the doubt. However, INP officials have advised the AFP that a mutual assistance request is required to obtain documents for use as evidence in prosecutions (in most cases, documents indicating the person is an adult).

The AFP continues to utilise all avenues available to it to expedite the process of gathering evidence relating to the age of Indonesian individuals detained in Australia suspected of people smuggling offences.

The defendant's legal representatives may also seek to present as evidence documents obtained from Indonesia containing information about the defendant's age or affidavits from relatives. The costs of obtaining this evidence are covered as a disbursement within a grant of legal aid.

Credible documentary evidence is not always available to support the claims of people smuggling crew about their age. Only 55 per cent of Indonesian births were recorded between 2000 and 2008. There are at least three different calendars used in parts of Indonesia, and it is commonly the case that Indonesian crew may not know their age or date of birth, and that there may be no documentation of their age or date of birth.

This recommendation reflects Australia's existing practice for making formal and informal requests for assistance to Indonesia; however any requests by Australia for the process to be expedited would be a matter for Indonesia to consider. It will always take time to obtain documents given the dispersed nature of the Indonesian archipelago, and in some cases documents may not exist.

Recommendation 3

The committee recommends that the Migration Act 1958 be amended to require that individuals suspected of people smuggling offences who claim to be minors be offered access to consular assistance as soon as practicable after their arrival in Australia.

Agreed in principle.

This recommendation reflects existing practice. However, some individuals choose not to accept consular assistance.

Indonesians detained in Australia for people smuggling are able to access consular assistance in accordance with the Vienna Convention on Consular Relations (VCCR) and Australia's Arrangement on Consular Notification and Assistance (the Consular Arrangement) with Indonesia, signed on 10 March 2010.

Australia's obligations under the VCCR and the Privacy Act 1988 prevent Australia from providing the personal particulars of any Indonesian national detained in Australia for people smuggling to Indonesian consular officials without that person's consent.

The Department of Foreign Affairs and Trade (DFAT) provides the initial notification to the Indonesian Embassy within three days that a SIEV has been boarded by Australian authorities and that Indonesian nationals, normally the crew of the vessel, are believed to be on board.

DIAC advises the Indonesian Embassy when Indonesian people smuggling crew enter immigration detention, are transferred between facilities, or leave immigration detention. Unidentified information (date of arrival, the number of individuals concerned, current location, and whether they are adults or minors) is provided where crew do not provide consent for consular notification.

Recommendation 4

The committee recommends that, in cases where an Indonesian national in immigration detention claims to be a minor, the Department of Immigration and Citizenship must notify the Indonesian Embassy and relevant consular officials of that claim as soon as practicable.

Agreed.

This recommendation reflects existing practice and is not restricted to Indonesian nationals who are detained for people smuggling offences. However, foreign nationals must first sign a consular notification form to agree to have their names released to the relevant consulate, and to obtain consular assistance. Some individuals choose not to accept consular assistance.

Recommendation 5

The committee recommends that DIAC:

- explicitly inform each Indonesian crew member suspected of people smuggling of their right to contact relatives in Indonesia as soon as practicable after their arrival in Australia; and

- take proactive steps to assist all crew who claim to be minors to contact their families in Indonesia within seven days, or as soon as practicable, after their arrival in Australia.

Agreed.

This recommendation reflects existing practice.

People smuggling crew held in immigration facilities are permitted to make domestic and international phone calls, and are allowed to try several different numbers until they make contact with their family or friends. These calls last approximately two minutes, to enable them to let the receiver know of their wellbeing. Individuals are permitted further additional time on a case by case basis. Due to poor mobile coverage in some countries, telephone contact is not always possible, which is typically understood by those trying to contact people in particular countries.

Internet access is also provided in immigration facilities after people are accommodated.

The only time phone calls are not attempted on the day of arrival is when a significant number of individuals arrive on the same day, as there is no distinction in the allocation of phone calls between people smuggling crew and other passengers arriving by boat. For example, in one instance 230 clients arrived at one time and it was not possible to make all 230 calls on that day. In situations like this, phone calls are generally completed over two or three days. DIAC considers these phone calls to be very important and it is a priority for these calls to be made as soon as possible.

Recommendation 6

In accordance with Recommendation 2 of the Senate Legal and Constitutional Affairs Legislation Committee ' s report into the Crimes Amendment (Fairness for Minors) Bill 2011, the committee recommends that the Australian Government introduce legislation to expressly provide that, where a person raises the issue of age during criminal proceedings, the prosecution bears the burden of proof to establish that the person was an adult at the time of the relevant offence.

Agreed.

Under the Migration Act 1958, penalties for aggravated people smuggling offences do not apply to persons where it is 'established' on the balance of probabilities that they are under the age of 18 years. However, the legislation does not specify whether the prosecution or the defence bears the burden of proof.

There has been some inconsistency in the courts as to who bears the burden of proof. However, in practice, the CDPP has taken on the obligation of establishing whether the person is a minor or an adult, in cases where the defendant raises age as an issue.

AGD is considering options for amendments to the Migration Act that would codify current practice by specifying that the prosecution bears the onus of proof in establishing age, where age is contested during a prosecution.

Recommendation 7

In accordance with Recommendation 2 of the Senate Legal and Constitutional Affairs Legislation Committee ' s report into the Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012, the committee recommends that the Australian Government facilitate and support further deterrence and awareness raising activities in relation to people smuggling offences, with a focus on relevant communities in Indonesia.

Agreed.

At the Australia-Indonesia Leaders Meeting on 3 July 2012, it was noted that Australia and Indonesia will conduct a joint public information campaign in Indonesia to prevent potential crew from being used by international people smuggling networks by helping them to understand the consequences, both in Australian and Indonesian law.

This campaign has commenced with two information sessions held in Bali and Kupang from 17-19 September 2012 for local Indonesian stakeholders and representatives.

The next phase of the awareness raising campaign is currently under development.

Government response: Chair ' s further findings and recommendations

Recommendation 1

The Chair of the committee recommends that the Attorney-General ' s Department undertake a review of all cases since 2008 where Indonesian minors may have been detained in Australia on suspicion of people smuggling offences, in order to determine:

- the number of minors who have been inappropriately detained in Australia; and

- the length of time for which those individuals were detained.

Disagree.

On 2 May 2012, the Attorney-General announced a review of convicted crew whose age was raised as an issue at some stage during the investigation and/or prosecution. A total of 28 cases were reviewed after being identified by the Australian Human Rights Commission, the Indonesian Embassy and the CDPP.

On 29 June 2012, the Attorney-General announced that the outcomes of the review were that:

o 15 crew were granted early release from prison on licence as there was a doubt they may have been minors on arrival in Australia

o two crew were released early on parole

o three crew completed their non-parole periods prior to the commencement of the review and

o eight crew were assessed as likely to be adults on arrival as there was no evidence supporting suggestions they were minors at the time of arrival.

There have been 1115 crew arrive in Australia since 2008. As at 30 November 2012, 197 crew have been returned on the basis that they may have been minors. AGD has reviewed all cases were crew in Australian prisons had been convicted and age was raised as an issue at some stage during the proceedings.

Recommendation 2

The Chair of the committee recommends that the Australian Government, in conjunction with state and territory governments, sufficiently resource Australia ' s eight legal aid commissions to enable legal aid lawyers representing suspected people smugglers who claim to be minors to travel to Indonesia to obtain relevant evidence relating to the age of their clients.

Agreed.

This recommendation reflects existing practice.

Legal aid commissions can seek reimbursement of costs incurred for providing representation to people smuggling defendants (including travelling to Indonesia to seek documentary evidence of age) through the Expensive Commonwealth Criminal Cases Fund, which is administered by the Attorney-General's Department.

Recommendation 3

The Chair of the committee recommends that the Australian Government introduce legislation to appoint an independent legal guardian for individuals suspected of people smuggling offences who claim to be minors, to represent their best interests while their age claims are assessed.

Disagree.

Interviews for individuals suspected of people smuggling who claim to be minors are undertaken in the presence of an Independent Observer who provides support to ensure the well-being of the individual. This applies whether the interview is to determine a person's age, identity or to establish information relevant to their travel to Australia. A legal representative is not present at these interviews.

However, in the criminal investigative context, current practice reflects the need for an independent person or guardian during a criminal investigation. Under s23K of the Crimes Act, if an investigating official believes on reasonable grounds that a person who is under arrest or a protected suspect is under 18, the official must not question the person unless an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard.

An interview friend means:

(a) a parent or guardian of the person or a legal practitioner acting for the person; or

(b) if none of the previously mentioned persons is available—a relative or friend of the person who is acceptable to the person; or

(c) if the person is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available—a person whose name is included in the relevant list maintained under subsection 23J(1); or

(d) if no person covered by paragraph (a), (b) or (c) is available—an independent person.

Indonesian consular representatives are also able to advocate on behalf of Indonesian crew given their consular functions include safeguarding the interests of their minor nationals (Vienna Convention on Consular Relations), provided that the individual accepts consular assistance.

Recommendation 4

The Chair of the committee recommends that the Migration Act 1958 be amended to require that legal assistance be provided to all individuals suspected of people smuggling offences who claim to be minors within three days of their arrival in Australia

Disagree.

Legal Aid Commissions are currently informed when crew arrive in Australia and offer assistance as soon as practicable. However, it is not appropriate to include time frames in the legislation.

Recommendation 5

The Chair of the committee recommends that the government appropriately resource National Legal Aid to station a full-time independent legal aid representative on Christmas Island, to provide legal assistance in person to all foreign boat crew who arrive there suspected of people smuggling offences.

Disagree.

National Legal Aid (NLA) is not funded by governments to provide legal assistance services. NLA is a non-statutory representative group comprising the directors of all eight legal aid commissions.

Under the National Partnership Agreement on Legal Assistance Services (NPA), the Australian Government funds legal aid commissions to deliver Commonwealth legal aid service priorities, including certain migration matters. The NPA does not fund legal assistance for external territories. The Legal Aid Commission of Western Australia is funded by the Territories Division of the Department of Regional Australia to provide legal assistance services on Christmas Island. Those arrangements cover the provision of assistance to people who are residents of Christmas Island, and any person on Christmas Island who is charged with a criminal offence.

Recommendation 6

The Chair of the committee recommends that the Crimes Act 1914 be amended to require that an individual suspected of people smuggling offences who claims to be a minor can only be detained in Australia for a maximum of 14 days before being charged or released from detention.

Disagree.

The Government is keen to avoid delays in investigations for persons suspected of people smuggling offences who say that they are minors. The AFP requires adequate time to consider all relevant factors when making a decision to charge a person, and has worked hard to reduce the time taken to investigate people smuggling offences and prepare a brief of evidence, setting a benchmark timeframe of 90 days from interception to laying charges.

As a result of continuing efforts to reduce time in detention, the AFP advises that for the period from 1 January 2012 to 12 November 2012, the average period of investigation from the date of formal referral of crew by DIAC to the date of charging by AFP is 74 days.

The Government is committed to further reducing delays in the investigation of people smuggling offences. Commonwealth agencies are developing solutions to address delays, including seeking identity documents from Indonesian consular officials in the first instance, pending a mutual assistance request. If available, these documents may then inform the AFP's decision about whether to give a person the benefit of the doubt about their age, prior to laying charges.

Unfortunately, there are often delays to the investigation process caused by environmental factors, which are difficult to avoid. For example, weather conditions may cause delays in conveying items of evidence, such as mobile phones and GPS equipment, which require forensic analysis by experts and equipment on mainland Australia. There may also be delays in securing interpreters of specific dialects required for interviews or investigations.

In addition, passengers on board people smuggling vessels are sometimes unwilling or unable to provide statements, which are necessary to proceed with most people smuggling prosecutions.

Recommendation 7

The Chair of the committee recommends that the Migration Act 1958 be amended to require that, where Criminal Justice Stay Certificates are issued in respect of individuals suspected of people smuggling offences who claim to be minors, those certificates should be the subject of periodic judicial review.

Disagree.

A Criminal Justice Stay Certificate (CJSC) operates to stay a non-citizen's removal and does not authorise or provide a legal basis for the non-citizen's detention. As set out in the written submission to the Senate Committee provided by AGD and the AFP, the person is detained pursuant to relevant provisions of the Migration Act (s189 and s250). If a CJSC is in force the Minister of Immigration and Citizenship may consider in his absolute discretion whether it is appropriate to issue a criminal justice stay visa which would entitle the person to be released from detention. The AFP and CDPP are the competent authorities in relation to investigations and prosecutions, and the Attorney-General's delegate may issue at the request of these agencies a CJSC to stay a person's removal. The Attorney-General's delegate necessarily relies on advice from these agencies as to whether the presence in Australia of a non-citizen is required for the purposes of the administration of criminal justice. AGD currently has procedures in place for the review of CJSCs, and in response to a recommendation made by the Australian Human Rights Commission has refined its procedures for review of CJSCs to include guidance on regular follow up with the AFP or CDPP, as relevant, for confirmation of the continuing need for the CJSC to ensure cancellation of certificates promptly once a person is no longer required. The Government considers its existing procedures for review of CJSCs to be appropriate.

Recommendation 8

The Chair of the committee recommends that an individual detained in Australia on suspicion of people smuggling charges who claims to be a minor must be held in community detention rather than immigration detention facilities while their case is considered, unless there is a clear reason why this would be inappropriate.

Disagree.

Under s197AB of the Migration Act, only the Minister for Immigration and Citizenship can approve a community detention placement for people in immigration detention. However, this is a non-compellable power and, in considering whether to make such a determination, the Minister must consider that it is in the public interest to do so. A blanket determination covering all people suspected of people smuggling offences who claim to be minors is inconsistent with the terms of the relevant provisions.

Recommendation 9

The Chair of the committee recommends that the Crimes Act 1914 be amended to require that an investigating official may only make an application to a magistrate or judge to determine the age of an individual charged with a people smuggling offence who claims to be a minor within 30 days of:

- the suspect being taken into immigration detention in Australia; or

- the suspect first making a claim that they are a minor

Disagree.

The proposed time limit of 30 days is insufficient for investigating officers to gather a thorough brief of evidence, particularly where the collection of evidence requires evidence being provided by the person's country of origin. The operational stages of the investigatory and age assessment process are outlined in the response to recommendation 6. Not only would the proposed time limit impact the ability of the AFP's to properly investigate an alleged offence it could jeopardise the ability of defendants to obtain evidence to substantiate their claims.

A person in immigration detention, or in remand in a criminal justice detention facility, can claim to be a minor at any time. It is not always the case that detainees claim to be minors at the point of interception, and it is not uncommon for claims about age to be made after the person has been detained for a period of time. Often challenges to the court's jurisdiction on the basis of age are made late in the proceedings, and in some cases claims about age are raised several times. Some age determination hearings are on the application of the defence. The defence has also, on occasion, asked that age determination proceedings be delayed while the defence gathers information.

The recommendation does not take into account these circumstances, nor does it clarify how the criminal proceedings would be dealt with should these circumstances arise. It is also unclear what should occur if an application for an age determination was not made within 30 days. Age is a fundamental question going to jurisdiction and cannot be ignored regardless of when an application is made.

Recommendation 10

The Chair of the committee recommends that the Commonwealth Director of Public Prosecutions review its procedures to ensure that all age-related evidence in its possession is made available to the court during age determination hearings.

Disagree

Under the policy framework announced on 8 July 2011, the AFP is to request documents containing information about the age of persons who say they are minors from their country of origin as soon as possible. However, the Government notes that it is not always possible to obtain such documentation given that other countries do not have the same requirements for identification documentation as Australia.

Based upon operational experience and expert advice, there are limitations in terms of the reliability of identity documents, as well as challenges posed by cultural and religious practices. As a result there can be issues with the admissibility of documents.

The CDPP's policy in relation to evidence in age determination hearings in people smuggling prosecutions is set out in the CDPP's Director's Litigation Instruction Number 2, which provides:

Evidence

(16) If a matter proceeds to an age determination hearing and the defendant seeks to:

call evidence from the defendant's family or other persons from the defendant's place of origin, whether in person, by audio or by audio visual link; and/or

the defendant seeks to call evidence to make admissible documents that the defendant wishes to tender during the hearing

the responsibility for making any arrangements to call such evidence will rest with the defendant's legal representatives, however the CDPP will cooperate as much as it is reasonably able to do so with the defendant's legal representatives.

(17) If a witness is unable to give evidence to the Court in person or by audio or audio visual link or if a defendant is unable to call the necessary evidence to make a document admissible, then generally the CDPP will not dispute the admissibility of any affidavits from the defendant's family or from other persons from the defendant's place of origin that the defendant wishes to tender nor the admissibility of any documentary evidence the defendant wishes to tender. It may be appropriate for comment to be made about the weight the Court should give to any evidence.

(18) The prosecutor may however dispute the admissibility of an affidavit or document; the information contained in the affidavit or document; call evidence or seek to cross-examine on the affidavit or document, if there are very cogent reasons for doing so.

(19) Any decision to dispute the admissibility of any such affidavits or documents should be discussed with the Deputy Director of the relevant Regional Office, and if necessary, raised with the Director.

This is a very unusual and permissive stance to be taken by a prosecuting entity, which has been taken as a result of practical issues confronting the CDPP in relation to documentary material from Indonesia. The CDPP does not have a similar approach in any other area of its practice.

This position only relates to the material that the defendant wishes to tender. The CDPP cannot require or expect that defence representatives will allow the CDPP to tender documentary material which is not admissible. Accordingly, the CDPP cannot ensure that all age-related material in its possession is made available to the court during age determination hearings.

Recommendation 11

The Chair of the committee recommends that the Australian Government issue an apology to those Indonesian nationals who were detained or convicted and imprisoned in Australia for involvement in people smuggling offences, only to be later released due to concerns that they were minors at the time of offending or upon the completion of their sentence.

Disagree.

In making decisions about investigation and prosecution of people smuggling crew Australian Government agencies act in good faith on the most reliable evidence available at the time. Assessing age is complex and difficult, as noted in the report. People may make claims to be minors at any stage of a prosecution.

Under the Government's current policy, in cases where age is not able to be clearly established, the person being investigated or prosecuted is given the benefit of the doubt and returned to their country of origin without charge. People being removed on this basis may in fact be adults, but they are being returned because there is a doubt whether they are adults or minors.

Recommendation 12

The Chair of the committee recommends that the Australian Government:

- recognise the right of Indonesian minors who were wrongly detained or imprisoned in Australia to be paid appropriate compensation;

- initiate a thorough and transparent process to identify individuals who were wrongly detained, or convicted and imprisoned, in Australia on people smuggling charges, only to be released due to concerns that they were minors at the time of offending or upon completion of their sentence;

- inform these individuals of their right to seek reparation for any periods of inappropriate detention or imprisonment; and

- establish an appropriate administrative mechanism, subject to judicial review, for determining rights violations associated with these cases and enabling compensation payments to be made to these individuals.

Disagree.

The offence of people smuggling applies equally to adults and minors: age is not relevant for this crime. Minors do not belong in adult prisons, which is why on 2 May 2012, the Attorney-General announced a review of convicted people smuggling crew whose age was raised as an issue at some stage during the investigation and/or prosecution. A total of 28 cases were reviewed after being identified by the Australian Human Rights Commission, the Indonesian Embassy and the CDPP.

On 29 June 2012, the Attorney-General announced that the outcomes of the review were that:

o 15 crew were granted early release from prison on licence as there was a doubt they may have been minors on arrival in Australia

o two crew were released early on parole

o three crew completed their non-parole periods prior to the commencement of the review and

o eight crew were assessed as likely to be adults on arrival as there was no evidence supporting suggestions they were minors at the time of arrival.

Australia has a fair system in place for assessing the age of people smuggling crew who claim to be minors, where all individuals who claim to be minors have their cases assessed on an individual basis. If there is insufficient evidence to establish whether the person is an adult or a minor, the person is given the benefit of the doubt and removed to their country of origin, unless exceptional circumstances apply.

People are free to make claims at any time against any government if they believe that a government has acted wrongly. Governments have a duty to properly consider such claims, as well as to properly defend themselves if such claims have no basis.

Recommendation 13

The Chair of the committee recommends that the Australian Government investigate options for providing culturally appropriate psychological support for Indonesian minors who suffered psychological trauma as a result of being wrongfully detained in Australia on suspicion of people smuggling.

Disagree.

The offence of people smuggling applies equally to adults and minors: age is not relevant for this crime. Indonesian crew of people smuggling vessels will be detained while consideration is given to whether they should be prosecuted for this offence.

Recommendation 14

The Chair of the committee recommends that the Attorney-General ' s Department request that the states and territories afford persons convicted of people smuggling the right to remit a portion of any income earned in prison to their relatives in Indonesia.

Disagree.

Parliament passed legislation expressly providing that those convicted of people smuggling offences should be liable to repay the costs of their detention. Such people are also liable to pay the costs associated with their removal (see Recommendation 15). State and Territory correctional authorities have been asked to prevent convicted people smuggling crew from remitting money overseas so that DIAC can implement the debt recovery procedures that apply to this cohort under the Migration Act.The calculation of these individual debts can only be finalised once the person is released from custody and the full costs of each case are known. Allowing overseas remittances for this cohort will compromise the outcome of this lawful debt recovery.

Recommendation 15

The Chair of the committee recommends that the Australian Government immediately reverse the policy of seeking to recover the costs of detention and removal from Australia from Indonesian boat crew convicted of people smuggling offences.

Disagree.

The Migration Amendment (Abolishing Detention Debt) Act 2009 amended the Migration Act and removed liability for immigration detention and related costs for people in immigration detention. However, it remains Government policy that those engaged in people smuggling should not profit from such an activity. Hence, those people convicted of people smuggling continue to incur liability for both a detention and a removal debt. The Migration Act allows DIAC to freeze funds of people smugglers, and issue a garnishee notice to a third party, to recover that money as a means of meeting their Commonwealth debt. Under current arrangements, the extent to which removal and detention debts are recoverable depends on whether the person has funds available and the legal basis for the person's detention in Australia. DIAC is currently able to recover both detention and removal debts from crew who on their arrival were detained under section 189(3), because of section 250, of the Act as a suspected people smuggling offender, and who have not subsequently been issued with a Criminal Justice Stay Visa (CJSV). Crew who have been issued a CJSV under past procedures are only able to have debts recovered on a voluntary basis under the same arrangements in the Migration Act that apply to all unlawful non-citizens who are being removed from Australia.

JOINT STANDING COMMITTEE ON TREATIES

REPORT 131: TREATIES TABLED ON 21 AUGUST, 11 AND 18 SEPTEMBER 2012

GOVERNMENT RESPONSE

Recommendation 2: The Committee recommends that new and revised extradition agreements should explicitly provide a requirement that the requesting country provide annual information concerning the trial status and health of extradited persons and the conditions of the detention facilities in which they are held.

The Government does not accept this recommendation.

The Government notes that the Committee made a similar recommendation in its Report 110 (Recommendation 4), and the Government's response to Report 110, which was tabled in February 2012, did not accept that recommendation. In considering Recommendation 2 of the current Report, the Government has carefully considered its previous response to Report 110 and the operation of Australia's extradition framework since that response. The Government has concluded that Australia's current extradition arrangements and policies remain appropriate and effective at this time.

The Government reiterates its view that the most appropriate time at which to examine any potential human rights concerns is before extradition occurs, during the extensive review process. This is consistent with Australia's obligations under international human rights law and with international extradition practice. As noted in the Government's Response to Report 110, the extradition process in Australia includes extensive procedural safeguards, which are included in the Extradition Act 1988 and in bilateral treaties. For example, Australia will not extradite a person if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life, application of the death penalty, or cruel, inhuman or degrading treatment or punishment.

In addition, since the time of the Government's response to Report 110, the Parliament has enacted the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012. This Act contains a number of significant amendments to further strengthen the protections in the Extradition Act 1988. These amendments include a new ground for refusing extradition where the person may be punished, or discriminated against, upon surrender on the basis of his or her sex or sexual orientation, as well as amendments to strengthen protections in situations where a person may be subjected to torture. The Government will continue to closely monitor the operation of Australia's extradition framework, and will examine the need for any further amendments as required.

As noted in the Government's Response to Report 110, the Government has established monitoring mechanisms in relation to Australian nationals who have been extradited overseas. The Government is able to conduct this monitoring because of the consular rights provided for under the Vienna Convention on Consular Relations and the resources provided to support Australia's consular network. In 2011-12, the Department of Foreign Affairs and Trade provided consular assistance to 236 Australian nationals serving prison sentences overseas. In addition, when a foreign national is extradited from Australia to a third country, the Government has agreed to formally advise that person's country of citizenship of his or her detention and extradition, subject to that person's consent (noting the constraints on the disclosure of personal information under the Privacy Act 1988).

As also noted in the Government's Response to Report 110, the Government has agreed to include additional information on persons extradited from Australia in the Annual Reports of the Attorney-General's Department, including information on:

extradition requests granted by Australia and the categories of the relevant offences by reference to the countries which made the request

the number of Australian permanent residents extradited, and

any breaches of substantive obligations under bilateral extradition agreements noted by Australian authorities.

Accordingly, in 2011-12, the Attorney-General's Department Annual Report included the following information:

10 extradition requests were granted by Australia in 2011-12. This included:

   o Jurisdictions to which extradition was granted: United Kingdom (6), Hong Kong (1), Indonesia (1), Ireland (1), United States (1)

   o Offence categories: Child sex and child exploitation offences (4), Drugs (1), Theft and/or fraud (3), Corruption (1), Culpable driving (1)

   o Citizenship of person extradited: Australia (5), Hong Kong (1), Ecuador (1),1 United Kingdom (3),* United States (1)

No permanent residents were extradited in the reporting period.

No breaches of substantive obligations contained in bilateral extradition treaties were noted in the reporting period.

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1 One person was a dual Ecuadorian-United Kingdom national.