Australia breaks Convention on the Rights of the Child

It is now common knowledge that Australian adult prisons are incarcerating children as young as 13. The major obstacle for human rights advocates struggling to free these children from our adult prisons is the Australian government and the horrific prejudices and stereotypes they have shoved down Australians’ throats.

Many of the children have now been freed, some brutally traumatised, one sexually abused, all of them losing some of their youth to an unwarranted prison experience. The struggle for their freedom and for the change of Australian laws and and their implementation has now garnered the support of a swathe of lawyers (who are working pro bono for the rights of these children), the Australian Human Rights Commission, the Australian Medical Association, the Australian Lawyers Alliance, UNICEF and two Greens Senators.

On November 25 the Senate’s Standing Committee on Legal and Constitutional Affairs called for submissions into the Crimes Amendment (Fairness for Minors) Bill 2011 introduced by Greens Senator Sarah Hanson-Young. Submissions close on January 31.

The bill seeks to define timeframes and set up evidentiary procedures for the age determination of “non-citizens accused of people smuggling offences under the Migration Act 1958, and who may have been a child (under 18) at the time of allegedly committing the offences.”

Prime Minister Julia Gillard and foreign minister Kevin Rudd were very concerned about the rights of a 14-year-old Australian child who was arrested by entrapment for possession of marijuana in Bali. However, neither demonstrated the moral leadership required to support the rights of 100 Indonesian children who, for far too long, have languished, either sentenced or on remand, in Australian adult prisons.

The child held in Bali is not in an Indonesian adult prison, was in custody within the appropriate jurisdiction and has now been convicted to a two-month sentence as a juvenile.

This Australian child will be spending Christmas with his family in Australia, while scores of impoverished Indonesian children will languish in the cold dank cells and concrete confines of Australian adult prisons on that very same day.

I contacted the Rudd’s office and he promised he would assist — he delivered less than nothing.

Early last year, during a visit to Hakea Prison (invited by a prison chaplain), I unexpectedly met 30 Indonesian fisher-people who had been sentenced for fishing in excised waters. I was stunned by how young some of them appeared and started to ask questions.

In January, I visited the Perth Airport Immigration Detention Centre with refugee advocate Victoria Martin-Iverson. We met an Indonesian youth who told us he had been a cook on a boat assisting the safe passage of asylum seekers to our shores. While visiting Hakea Prison in February, I was stunned to learn that this youth had been arrested and charged as a people smuggler and remanded to Hakea. I thought it couldn’t be right — Hakea is an adult prison.

Every Australian authority I contacted shut up shop and passed the buck. The media were reluctant to get involved: the producers of one major news program told me: “We can’t do a story on these kids, they’re people smugglers and Australians see people smugglers as evil — it’ll affect our ratings.”

Legal representation for these youths, provided by under-resourced Legal Aid providers, has not always been adequate.

However, more lawyers working pro bono are better representing accused people smugglers. Terry Fisher, representing at this time 22 accused people smugglers, David Svoboda, Mark Plunkett, Edwina Lloyd and several others have ensured the liberty of the children they represented.

What these lawyers have done, including travelling to Indonesia to secure court-admissible evidence to displace the presumption of evidence of age from the discredited wrist bone x-ray, has exposed the failings of our intertwined criminal justice and political systems.

No politicians have demonstrated the political leadership required. However, there has been more media exposure. Former chief-of-staff of the Age Lindsay Murdoch has since July written several articles, syndicated across the country. The West Australian’s senior reporter Steve Pennells visited Indonesia to find the mother of one of the children in our adult prisons, and this finished on the front page.





Since then there have been several stories on the plight of these children and the discredited wrist bone scan which the Australian Federal Police (AFP) has been using for age assessment.

On July 20, I asked Gillard about the Indonesian children in adult prisons, 70 having been confirmed at the time by the AFP as “age-disputes”, and asked her to expedite their release into an appropriate jurisdiction and to implement appropriate age-determination protocols, not the discredited wrist bone x-rays. She froze, as if there was another scandal-in-waiting.

Despite the government promising it would do more, all it has done is add a dental scan to the wrist bone x-ray — neither is accurate in terms of assessing age. Why not work with the relevant authorities in Indonesia or with the Consulates? Of these children, 35 have been released so far, the December 1 UAE National reported.

The mantra of “breaking the people smugglers’ business model” has caused much damage to public views. Is assisting in the passage of an asylum seeker immoral and criminal?

There are many asylum seekers who cannot find safe passage from persecution and oppression without the assistance of others. I do not question that there may be some who have profiteered in assisting asylum seekers. However, is this a crime?

Migration agents get paid for their services. Who doesn’t? Let us remind ourselves that much of what is paid to so-called people smugglers is also spent on ensuring their safe passage.

If Gillard and immigration minister Chris Bowen want to break what they perceive as the people smugglers’ business model they should listen to the Director of Refugee and Asylum Law at the University of Michigan, James Hathaway.

“Canada and other developed countries created the market on which smugglers depend by erecting migration walls around their territories,” he wrote.

“The more difficult it is to get across a border to safety on one’s own, the more sensible it is to hire a smuggler to navigate the barriers to entry. Smugglers are thus the critical bridge to get at-risk people to safety. Which one of us, if confronted with a desperate need to flee but facing seemingly impossible barriers, would not seek out a smuggler to assist us?”

Australia’s misrepresentation of those who assist asylum seekers in their safe passage and their labelling as people smugglers has now caught up youths and children who were no more than cooks and deckhands on the boats of those lawfully seeking asylum on our shores.

We should also not forget the fisher-people convicted for the miniscule crime for fishing in excised waters to feed their families. Some of them are also children.

Currently in the Victorian courts, lawyers are arguing that as asylum seekers have a legal right to come to Australia, people have a legal right to assist them. Indeed, paragraphs 232 and 233 of the Migration Act support this argument.

The incarceration of Indonesian youths and children in Australian adult prisons is a human rights abuse beyond comprehension.

I believe there are still up to 100 children languishing, many who fearfully may have withdrawn their “age dispute”. A young Indonesian prisoner called me on October 28 to say he is 16 years old, however does not want any more “authority” in his life. Many never raised their age as an issue, or who settled on an inaccurate date of birth, either because of language barriers or a fear of authority.

Then there are those children who languish in immigration detention. Several young people on remand in our adult prisons have told me: “I am scared in prison but prison is better than Christmas Island and Darwin [immigration detention centres] where we are treated and caged like animals, because here in prison we are treated better by the guards and there is more to do, like courses and learning, but here we have to be careful to stay away from some of the bad criminals.”