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Wednesday, 23 November 2011
Page: 9387


Senator HANSON-YOUNG (South Australia) (15:47): I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

Senator HANSON-YOUNG: I table the explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

Introduction

The Crimes and Other Legislation Amendment (Fairness for Minors) Bill 2011 seeks to establish timeframes and evidentiary protocols for the age determination and prosecution of non-citizens who are suspected or accused of people smuggling offences under the Migration Act 1958 (Cth) and who may be a child.

By introducing this Bill we intend to remedy a clear and deeply concerning lacuna in law and policy in relation to the treatment of minors - in reality often young Indonesian fishermen acting as crew on asylum seeker vessels - who are accused of people smuggling yet are not the organisers. It is apparent that the current process of detaining, charging and prosecuting minors for people smuggling is leading to serious miscarriages of justice.

The Migration Act 1958 (Migration Act) currently includes several offences relating to people smuggling. Existing section 233A establishes the primary people smuggling offence. Under this section, it is an offence for a person to organise or facilitate the bringing or coming to Australia, or entry or proposed entry into Australia, of another person, if that other person is a non-citizen and had or has no lawful right to come to Australia. Existing section 233C establishes an aggravated people smuggling offence where a person, in committing a primary offence of people smuggling, organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least five persons who had or have no lawful right to come to Australia. If a person is convicted of aggravated people smuggling the Migration Act at s236B shuts out any judicial discretion to take into account the facts and circumstances of the case and sentencing principles by setting a mandatory minimum penalty of five years imprisonment (with a three year non-parole period).

The reforms to the Crimes Act 1914 proposed by this Bill will directly impact the manner in which Australian authorities are empowered to act on the criminal offences of people smuggling outlined by the Migration Act. By this Bill we seek to establish fair criminal procedures and basic humanity in the way Australia deals with non-citizen alleged people smugglers who are potentially only children. The Bill removes the taking and usage of discredited wrist (or other skeletal) x-rays in the age determination processes; establishes reasonable timeframes for the laying of charges and the age determination proceeding before a court; confirms that people who claim to be minors will be treated as such unless it pis proven through a legal age determination process that they are adult; ensures that no person who is possibly a child will be incarcerated in an Australian adult prison or remand centre; and reiterates the onus that should be borne by Australian prosecuting agencies in assembling a thorough brief of evidence to displace the presumption that the person is a minor.

Background

In Australia there are clear expectations for how people should be treated when they are brought before the law. Across our state and territory jurisdictions there is a clear and consistent expectation that people will be charged without delay and a credible brief of evidence assembled in a humane timeframe. When it comes to the prosecution of Australian children, our expectations are, as they should be, even higher. Australian children who are accused of criminal offending are brought before specialised children's courts; they are generally subject a more expansive presumption of bail; and are housed in youth justice facilities rather than in adult prisons. However, when it comes to children found to be crew on people smuggling boats we have no comparable standards.

At the time when this Bill is being introduced in November 2011 there are approximately 50 people sitting in adult prisons around Australia who claim that they are less than 18 years old. Based on the high success rate of past age based negotiations and determinations this means undeniably that, right now, there are numerous children being held in our adult prison system. This is a deplorable state of affairs. The consulate responsible for these young people has confirmed that it is keeping close track of their status and making efforts to support them. The Human Rights Commission in November 2011 has announced an inquiry into the treatment of asylum seeker boat crew including minors and will report back in 2012. A public hearing held into the Deterring People Smuggling Bill earlier this month elicited strong criticism from legal advocates regarding the cruel, unsafe and unnecessarily protracted incarceration of minors in adult prisons.

Impetus for Reform

The Prosecution Policy of the Commonwealth points out that the Commonwealth will not prosecute minors except in egregious circumstances. It has been asserted by Ministers and departmental spokespeople that it is the policy of the Australian Federal Police and the Commonwealth Department of Public Prosecutions (CDPP) that, if there is doubt about the age of a person, then the authorities will seek to ascertain the age and give the accused the benefit of the doubt. However the reality of the case progression for minors demonstrates that reliance on policy statements alone is not enough.

Currently there is no mandated process to ensure that decisions about whether or not to apply the exemption from prosecution are made fairly, with credible evidence and in an appropriate period of time . The lack of legislative timeframes means cases are languishing for months before the question of age and culpability is properly considered . When a vessel carrying asylum seekers is intercepted, the crew and passengers are taken into immigration detention and questioned by authorities. Anyone seeking asylum makes their claim to Department of Immigration and Citizenship (DIAC), leaving those who have crewed the boat and are therefore likely to face people smuggling prosecution .

Of that group, and in accordance with the aforementioned policy, the persons who are deemed children on first assessment are swiftly deported. The remainder - both adults and those claiming to be children - are placed into immigration detention, usually on Christmas Island, where they may languish for up an extended period without charge. There is no mandated differentiated treatment for people claiming to be children. In some cases the delay prior to the laying of charges has been up to 10 months. At some point in their detention the accused person is taken to Darwin for a much criticised wrist x-ray procedure which continues to be used by prosecutors as the primary piece of evidence on which age is determined.

When the decision is made to charge the individual, they are moved from Christmas Island to an Australian state or territory. Charges are laid and the person is removed from immigration detention and remanded into the prison system on a criminal justice visa to await their trial. It is at this stage - so late in the process - that the legal system exerts its influence. By triggering an appearance before a Magistrates' Court, the person is finally able to see a lawyer and receive advice about their situation. The CDPP is required to forensically consider the evidence in relation to the age of the person and make a judgement about the merit of proceeding with charges . An application may be made for bail or for an age determination prior to the criminal trial. If a bail application is not made or is unsuccessful, further months pass while the accused awaits their day in court. Throughout all this time it is still possible the accused people smuggler is could be a child and thus should be deported without charge rather than spending months in custody.

There is no justification in the scenario outlined above for a child being remanded to an adult prison. Many children's advocates around Australia consider this process to be tantamount to child abuse and have said so publicly. It is a breach of the United Nations' Convention on the Rights of the Child . Aside from these compelling reasons for mandating against such injustice, there is no moral or policy based justification for such drastic departure from the expectations of how Australia's criminal justice system should treat children.

Evidence given to the inquiry to the Deterring People Smuggler's Bill highlighted the fact that many people charged with people smuggling are impoverished, ill-educated, and understandably naïve with regard to Australia's criminal laws. At the time of recruitment they believe they are embarking on a standard fishing voyage and are unaware of the true nature of their participation in people smuggling. In the instance that a child is caught up in this cruel cycle they must benefit as quickly as possible from the government's stated exemption of prosecution of minors. Instead, due to the deplorable lack of mandated procedures in this area of law, children are being held in adult prisons and immigration detention for months and years before prosecutors finally drop the charges or, in a minority of cases, win the age determination on the back of continued reliance on discredited wrist x-rays . Worse, in a number of cases, accused people smugglers have been found by the court to be a child after an age determination hearing. Those months and years spent in custody prior to the finding can never be returned.

The reforms brought by this Bill

Presumption of status as child and banning of imprisonment in adult facilities

This Bill ensures that no person who has raised the assertion that they are a child can be imprisoned in an adult remand centre or gaol. When vulnerable children are held in adult custody they are exposed to the risk of inappropriate treatment in breach of their rights as a child or, at worst, violence or sexual assault. If a young person is released on bail from a youth justice facility to immigration detention pending their age determination, it is current DIAC policy that they will be kept in a separate area to asylum seeker children.

Wrist or dental x-rays

One of the crucial areas of reform brought about by this Bill is the banning of the taking and usage of wrist and dental x-rays as evidence for age determination for presumed minors charged with people smuggling. The usage of this method of age determination has been described as unreliable and unethical by peak medical bodies including the Royal Australian College of Physicians, Australian Paediatric Endocrine Group, Australian and New Zealand Society for Paediatric Radiology, and the Royal Australian and New Zealand College of Radiologists. As noted in a letter from these groups the wrist x-rays method is known as the Gruelich and Pyle method and was designed for assessment of skeletal age by a treating therapist who knows the chronological age, not the reverse. The letter further notes that data which forms the basis for this wrist x-ray method is drawn from a 1930s study conducted on white Americans, as such it cannot be used to conclude the age of someone who may be affected by malnutrition and racial factors prevalent in children involved in people smuggling prosecutions. This Bill brings Australia into line with other nations and organisations who have banned the use of wrist x-rays, including the United Kingdom, numerous European governments, the International Olympic Committee and FIFA.

Onus of establishing age

This Bill also clarifies and strengthens the existing burden on the Commonwealth prosecution to take effective and swift action to identify whether an accused people smuggler is a child by means other than wrist or dental examination. In the course of people smuggling prosecutions over recent years it has become habit for Commonwealth authorities to rely on what can only be described as a bare minimum of evidentiary documentation in support of their assertion that the accused is over 18 and thus criminally liable according to DIAC policy.

Briefs of evidence seldom extend beyond age assessment interviews by DIAC officers, wrist x-ray images and associated medical evidence, and basic statements relating to the interception and processing of the accused from fellow passengers, Royal Australian Navy officials, Customs officials and DIAC staff. In order to prove their client's status as a minor, it has become practice for criminal defence practitioners to make the journey to Indonesia (or the accused's country of origin) to gather evidence that properly indicates the age of the accused. This may include such items as affidavits from family and community members, vaccination and medical records, religious papers, birth certificate, school records, photographs and other items.

In accordance with legal norms, this Bill clarifies that the onus should be on the Australian authorities to investigate and compile a brief of evidence which establishes on the balance of probabilities that the accused is not a child and should be returned home without charge. According to Australian criminal defence lawyers who have already undertaken field investigations on a number of occasions, the survey mission to the accused's country of origin takes on average around four days. With appropriate allocation of resources, sensible protocols and cooperation of authorities in the country of origin this burden is not unduly onerous and only reiterates what is already expected of the prosecuting agency under standard criminal legal procedure.

Timeframes

One of the key elements of this Bill is the establishing of timelines for the laying of charges and the age determination process. This is in direct response to unacceptable periods of time which cases have wallowed thus far. A deadline of 14 days from point of interception to laying of charges allows time for DIAC to conduct an initial interview and conduct a paper based age determination interview, and to transport the child to the Australian mainland. A further improvement is that the accused will be brought into the legal system and allocated legal representation months earlier than currently occurs.

This Bill also sets a deadline of 30 days from point of interception for the prosecution to make an application for legal age determination. The purpose is to ensure that the authorities have a number of weeks to investigate whether they can obtain evidence that may displace, on the balance of probabilities, the presumption that the person is a child as claimed. If investigations suggest otherwise, it is anticipated that prosecutors will exert forensic judgement and deport the child at the earliest opportunity, thereby saving the child from inhuman and unnecessary detention and the Australian tax-payer and court system time and money.

Conclusion

The reforms in this Bill establish clear and specific measures that address a number of holes in law and policy around the prosecution of presumed children for the offence of people smuggling. This Bill provides for a commonsense approach to remedying the significant problems in current practice and ensures that no child will be incarcerated with adults or charged on the basis on unreliable evidence.

In introducing this Bill I also call on DIAC and state/territory corrections authorities to conduct an urgent audit of their respective detention and prison networks to ensure that all young people who would be affected by this Bill are identified and put into contact with their relevant Consulate and a legal practitioner as a matter of urgency.

It is imperative that the federal parliament supports this Bill. In doing so the parliament would be stepping in to fill a legislative vacuum, which is leading to Australia breaching of the Convention on the Rights of the Child and the United Nations Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. Out of the Navy, DIAC, Serco Australia Pty Ltd, the AFP, the CDPP, and territory and state corrective services there is no Australian authority is taking responsibility for this perversion of natural justice and criminal procedure.

I commend the Bill to the Senate.

Senator HANSON-YOUNG: I seek leave to continue my remarks later.

Leave granted, debate adjourned.