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Thursday, 27 June 2013
Page: 4372

Senator BOYCE (Queensland) (20:00): I was unfortunately unable to participate in this inquiry which was conducted by the committee that you, Madam Acting Deputy President Crossin, chaired. But, as you would be aware, our references committee had already looked in some depth at some of the issues involved in this bill—for example, the question of wrist X-rays as a way of indicating the age of an individual. I do not think anyone at all in Australia would like the prospect of us imprisoning children with adults, so ascertaining if someone is a minor or not is something that we certainly need to be able to do.

It will be interesting to see how in practice this bill pans out. We know now that we will not use wrist X-rays as a way of determining the age of the person who is involved in perhaps people smuggling or illegal fishing in Australia. What we will do instead is use an evidentiary certificate which will contain factual matters, including the number of passengers on a vessel, the number of persons who crewed the vessel, the location of the vessel, when the vessel was intercepted and a description of items secured or seized. I am not entirely sure how this is going to help us to assess the true age of someone who is intercepted on a boat, either a people-smuggling vessel or an illegal fishing vessel, but we shall see how this comes about in the long term.

There is the serious problem that this may in fact encourage adults to claim to be children. Whilst it would seem a fairly simple matter to solve for Australians, thinking, 'For heaven's sake; can't we just get their birth certificate?', we have had a lot of evidence from the Australian Federal Police and others pointing out that in fact we cannot just send someone over to a fishing village in Indonesia to go through the church records or police records there. In some cases there may be fairly rudimentary records kept. In other cases it may take months and months to receive any sort of evidence back from authorities in the relevant jurisdiction, be it a village or a province.

But there was also evidence given in the earlier inquiry—which I think you will acknowledge, Madam Acting Deputy President, was a far more in-depth inquiry than the very rushed effort that was put together for this bill—that in fact there were opportunities presented to the jailers of minors who were in adult detention to find out about their age. There were people who, through interpreters and others, suggested that adults and others could be rung in their home states or villages to try to give some sort of evidence about their age—yet much of this was ignored. It is a very fraught area, and I will be interested to see how this works out in practice. But certainly there would be no group that would want children to be held in detention as adults.

But we do have to keep in mind that there is the possibility of adults pretending to be children so that they can avoid the sort of detention that is being talked about because, as this bill points out, the idea with children would be to send them home as quickly as possible. In fact, the then Minister for Home Affairs, Brendan O'Connor—that is about six ministers ago now, I think!—talked with Indonesian ministers and officials, as part of a visit to Jakarta, about the age determination process for people involved in people smuggling. After his discussions with the Indonesians in 2011, he said:

What we've made very clear to the Indonesian government is that we will set in place an administrative arrangement where the matter is not referred to the AFP but there will be a determination by the Department of Immigration and Citizenship, and then the International Office of Migration will accompany those minors home as quickly as possible.

Those procedural changes have occurred, but we now have this difficulty of the AFP dealing with adults and not with children. I really cannot see quite how that will transpire long term. We will be interested to follow this. Hopefully, it will not lead to a great change in the numbers that are presented.

What we will end up with here is no prescribed procedure for determining age under the Crimes Regulations. As I have said, this amendment implements a recommendation of the Senate Legal and Constitutional Affairs Legislation Committee and responds to concerns of the Australian Human Rights Commission and, indeed, advice from the Office of the Chief Scientist, who was unable to be very specific about whether he thought that wrist x-rays worked or not.

But there really is not sufficient scientific data to support use of wrist x-rays to determine whether a person is a minor. Regulation 6C of the Crimes Regulations prescribes wrist x-rays as a procedure for determining age and so forth. In the past the AFP have arranged for wrist x-rays to happen and have put expert analysis of those x-rays before the court as evidence of an age-determination hearing. This will no longer happen. Certainly wrist x-rays have been sufficiently devalued as a way of ascertaining age for us not to use them, but we do not have any regulations at all for that other than what appear to be very, very lengthy procedural inquiries that need to be made. I think we need to proceed with caution in this area, particularly if we suddenly find that we have an epidemic of under-16-year-olds coming to Australia.

Because we have a time limit on the debate for this bill—we have the gag yet again; we had a gagged inquiry and now we have a gagged debate—I will stop my comments now and give others an opportunity to speak on this legislation.