Government fails on children’s rights

Australia’s treatment of suspected people smugglers who said that they were children has breached international human rights law and raised serious questions about the resilience of our criminal justice system, Australian Human Rights Commission President Catherine Branson QC said.

Ms Branson has today released An age of uncertainty, the report of her Inquiry into the treatment of suspected people smugglers who said that they were children. In releasing the report, Ms Branson said that between late 2008 and late 2011, Australian authorities apparently gave little weight to the rights of these young Indonesians.

“The events outlined in this report reveal that, between 2008 and 2011, each of the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions and the Attorney-General’s Department engaged in acts and practices that led to contraventions of fundamental rights; not just rights recognised under international human rights law but in some cases rights also recognised at common law, such as the right to a fair trial,” Ms Branson said.

“It seems likely that some of those acts and practices are best understood in the context of heavy workloads, difficulties of investigation and limited resources.

“Others, however, seem best explained by insufficient resilience in the face of political and public pressure to ‘take people smuggling seriously’; a pressure which seems to have contributed to a high level of scepticism about statements made by young crew on the boats carrying asylum seekers to Australia that they were under the age of 18 years.”

Ms Branson said the authorities involved failed seriously to question practices and procedures that led to young Indonesians who are now known to have been children or to have been highly likely to have been children, being held in detention in Australia for long periods of time, in many cases in adult correctional facilities.

She said the Australian Federal Police and the Commonwealth Director of Public Prosecutions continued to rely on wrist x-ray analysis as evidence of age despite increasing evidence indicating that the process was uninformative of whether a young person was over the age of 18 years. Wrist x-ray analysis continued to be used for age assessment purposes despite the fact that the Royal Australian and New Zealand College of Radiologists, the Australian and New Zealand Society for Paediatric Radiology, the Australasian Paediatric Endocrine Group, and the Division of Paediatrics, Royal Australasian College of Physicians advised that the technique was unreliable and untrustworthy.

“The Office of the CDPP also failed to identify that it was under a duty to examine whether it could continue to maintain confidence in the integrity of the evidence being given by the radiologist most commonly engaged by the Commonwealth as an expert witness, and under an obligation to disclose to the defence the material in its possession that tended to undermine his evidence,” Ms Branson said.

She said the federal Attorney-General’s Department failed to review the contemporary literature which critically examined the technique, failed to seek independent expert advice and failed to provide informed and frank policy advice to the Attorney General – including advice concerning the risk that reliance on the technique had led, and would continue to lead, to children wrongly being identified as adults.

“The dogged reliance on wrist x-ray analysis, together with inadequate reliance on other age assessment processes, resulted in the prolonged detention, sometimes in adult correctional facilities, of young Indonesians who it is now accepted were, or were likely to have been, children at the time of their apprehension.”

Ms Branson said she hoped that her Inquiry would also lead to ‘mature’ reflection on the strengths and weaknesses of the criminal justice system more generally.

“The Inquiry has revealed that this system may be insufficiently robust to ensure that the human rights of everyone suspected of a criminal offence are respected and protected,” she said.

“To this end, I urge all of the agencies involved to give consideration to how the human rights of this cohort of young Indonesians came to be breached in the ways outlined in this report.”

The report makes a number of recommendations to assist in creating a lasting environment in which the rights of young Indonesians suspected of people smuggling are respected and protected in every interaction they have with Australian authorities. Key among these is the recommendation that the Crimes Act be amended so that wrist x-ray analysis can no longer be used as evidence that a person is over the age of 18 years.

“Careful consideration should also be given to the steps that need to be taken to ensure that in the future Australia does respect the human rights of all who comes into contact with our system of criminal justice,” Ms Branson said.

The report is available online.