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Issue #1530      7 December 2011

Australia shatters its party to the Convention on the Rights of the Child

It is indeed now common knowledge that Australian adult prisons are incarcerating children as young as 13. The human rights struggle to free these children has been an arduous one, with the major obstacle the Australian government and the horrific prejudices and stereotypes they have promoted so as to perceptually influence public perception.

Many have now been freed, some brutally traumatised, one sexually abused, all of them losing some of the form and content of their youth to an unwarranted prison experience. The struggle for their freedom and to change the law has now garnered the support of a swathe of lawyers – who advocate the rights of these children, from the Australian Human Rights Commission, the Australian Medical Association, the Australian Lawyers Alliance, UNICEF and the Greens Senators.

Prime Minister Julia Gillard and Foreign Minister Kevin Rudd were 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 represent the rights of 100 Indonesian children who for far too long languished, either as sentenced or on remand, in Australian adult prisons. The child held before the Balinese criminal justice system was not in an Indonesian adult prison and was in custody within the appropriate jurisdiction and was 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.

On July 20 I spoke to Prime Minister Julia Gillard about the thereabouts 100 Indonesian children languishing in Australian adult prisons. They range in age from 13 to 17 years. It has been a painstaking journey to have some of them released – via court proceedings and by behind the scenes efforts. I contacted the Office of Foreign Minister Kevin Rudd and he promised he would assist. Like Ms Gillard, Mr Rudd delivered less than nothing.

Early last year, during an official visit, invited by a prison chaplain to Hakea Prison 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 hence started to ask questions.

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

On the morning of the visit, for the first time in seven years of visiting those in prison, I and a companion, Nikola Leka, were pulled up by security on the instructions of the Justice Intelligence Unit and interrogated as to why I wanted to visit this youth. We did manage to see him for an hour and hence he confirmed to us that he was born in 1995 – and this is in line with the Indonesian National Police clearance that was later secured on his behalf – however he continues to languish in a West Australian regional prison.

Passing the buck

I contacted every relevant authority in Australia and the Indonesian Embassy in Canberra and the Consulate in Perth. Every Australian authority shut up shop and passed the buck. It took much effort to get the news media involved because they wanted lawyers representing the cooks and deckhands to speak up. At that time Australia’s political landscape did not support this.

The producers of one major news program said, “Gerry, 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.” Most lawyers representing these youths, funded by Legal Aid, were under-representing them and hence railroading them to prison sentences.

The ability to discover the truth is outstripped by the ability to manufacture deceit.

I have sat through a number of court proceedings and have seen first-hand the under-representation – it is beyond disgraceful – it is criminal. I have listened to numerous stories from those languishing in our prisons about having no contact with their appointed lawyers and I have heard from some they had been advised to plead guilty. Working hard to get lawyers to better argue on behalf of their clients was foremost.

There are a number of worthy solicitors and barristers who have done the job, and especially in recent times – the political landscape has been changing and more and more lawyers are better representing perceived people smugglers and the age-disputes.

Terry Fisher, representing at this time 22 perceived people smugglers, leads the way, and David Svoboda, Mark Plunkett, Edwina Lloyd and several others have ensured the liberty of the children they represented. What these lawyers have done, and in travelling to Indonesia to secure court admissible evidence to displace the presumption of evidence of age from the discredited wrist bone age scan, has exposed the failings of our intertwined criminal justice and political systems.

The news media was important – and it took a couple of months to win them over, and their chiefs of staff. However the West Australian reporter Jane Hammond finally got a significant April 6 article in about the predicament of the child I had met in Hakea Prison. For the next couple of months doors shut and bureaucrats did not know how to handle the potential political fall-out fearing a scandal-in-waiting when instead they should have been more concerned about ensuring that children were not in adult prisons. You’d think they’d err on the side of caution.

Not one politician I went to was prepared to demonstrate the political leadership required The next important news media exposure came when the former chief-of-staff of The Age newspaper Lindsay Murdoch took up the clarion call, and in July wrote one article after another, syndicated across the country.

Then 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 one reporter after another has run a story on the plight of these children and of the discredited wrist bone scan which the Australian Federal Police (AFP) had been using for age assessment, which in the United Kingdom, is unlawful. The test is not failsafe in determining age, and is predominately about measuring skeletal fissures. Paediatricians, and major medical bodies, and the president of the Australian Medical Association, Steve Hambleton, have slammed the test.

Federal Minister for Justice, Brendan O’Connor said there will be no review of any age-dispute of those already sentenced and it is up to them to secure legal representation to prove their age through the Australian justice system. In effect to protect the Australian Labor Party, Mr O’Connor is indeed prepared to accept children in Australian adult prisons – shattering Australia’s party to the Convention on the Rights of the Child. At this time there is a submission to the United Nations and to UNICEF portraying Australia’s dereliction of its party to the Convention on the Rights of the Child.

Let me remind people that the children who were cooks and deckhands on the boats of asylum seekers to our shores are not the only children in our adult prisons. There are those who most have forgotten – the poor fisher-people sentenced for fishing in excised waters. Unfortunately, the terms of reference of the Australian Human Rights Commission (AHRC) national review on the Indonesian children do not include these other Indonesian children – more on this a little further on.

In late July the government promised it would do much more – however it came back with nothing more, except that it added a dental scan to compound the problems from the wrist bone scan – neither is failsafe in terms of assessing age. Why not work with the relevant authorities in Indonesia or with the Consulates?

Work behind the scenes

Those children released thus far are as a result of exhausting behind the scenes campaigning, with charges withdrawn by the Commonwealth Department of Public Prosecutors. Thirty-four have had charges withdrawn – eight released by pressure through the Courts. However, far too many children continued to languish – so in August I organised with Sydney Indonesian human rights advocate, Eko Waluyo and Sydney lawyer, Edwina Lloyd for the coordination of a Public Forum on the plight of the Indonesian children. This was attended by 70 people and including the Human Rights Unit of the AHRC. The AHRC got involved and began to aggregate information and in time presented a number of cases to the Attorney-General, Robert McClelland to review, at least 18 cases.

However, as the news media dropped off the plight of these children there appeared a vacuum of humanity in that the government had stopped the wheels of justice, in that they were not prepared to amend age determination protocols nor initiate any review, nor any Senator was prepared to ask questions in the Australian Senate. Eko Waluyo, Edwina Lloyd and myself coordinated three public forums during October in Sydney on the ongoing plight of these children, and of Australia’s flagrant abuse of children.

The forums were held at the University of New South Wales Law School, the University of Sydney and the University of Technology Sydney. Due to these forums a swathe of news media highlighted the plight of the children. The AHRC has now called for the national review and inquiry and this is pivotal in unfolding justice and remedy.

The following is from the AHRC: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children:

“We would like to inform you that the President of the Australian Human Rights Commission, Catherine Branson QC, is conducting an inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children. The majority of these individuals are Indonesian nationals who have worked as crew on boats bringing asylum seekers to Australia, and who have subsequently been investigated for people smuggling offences. As you are aware, the Commission has serious concerns that errors in age determination procedures may have resulted in some children spending long periods of time detained in adult correctional facilities. The inquiry will consider all cases where age has been in dispute since September 2008.”

The terms of reference for the Inquiry can be found at the Inquiry website at humanrights.gov.au/ageassessment. A discussion paper outlining the major issues of concern to the Commission will soon be published on this website.

Public submissions to this inquiry are welcome. The Commission is also able to receive submissions in confidence. Submissions addressing the terms of reference are due on: Friday February 3, 2012. Submissions and other enquiries may be sent to the Commission at the following address: ageassessment@humanrights.gov.au.

On October 15 I met with Australian Greens Senators Sarah Hansen-Young and Lee Rhiannon and hence the next most important step took place – I provided them with questions for the Senate Estimates Committee. Senator Lee Rhiannon in the Senate Estimates asked the first of a set of questions of the ASIO chief about Indonesian children in our prisons. Senator Hansen-Young continued the questions and this has dropped an onus of accountability on various agencies – AFP, DIAC, the Office of the Prime Minister and the Commonwealth Department of Public Prosecutors.

Unless, we amend the age determination protocols we risk much of the same. Unless we amend the various “people smuggling legislation” we risk incarcerating peoples who are not organisers and who in terms of international laws and conventions have committed no crime.

“Business model” mantra

The mantra of “breaking the people smugglers’ business model” has caused much damage and perceptually modified public views. Is “people smuggling” a reality or is it a myth, and is the assisting in the passage of an asylum seeker immoral and criminal?

I was stunned when a GetUP! campaign against the Malaysian option quoted, “it’s understandable that the Minister cannot offer a blanket exemption to any class of asylum seekers, for fear that people smugglers will exploit it to their advantage.” 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 Prime Minister 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.

“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?”

Many people smugglers were asylum seekers and refugees and they understand the predicament of their peoples. Iraqi Ali Jenabi’s brother was killed by Saddam Hussein’s forces. He arrived in Indonesia penniless and to earn passage for his family to Australia, which included his mother, sisters, brothers and an uncle, he worked for perceived people smugglers. His family finally arrived in three separate boats. Ali Jenabi’s humanity continued and he has since helped many others seek passage, including those with no money. He is a hero to the Iraqi communities of Australia, but a perceived people smuggler to Prime Minister Gillard. He could face ten years jail.

Australia’s misrepresentation of those who assist asylum seekers in their safe passage and their labelling as people smugglers has now caught up young children, who were no more than cooks and deckhands on the boats lawfully seeking asylum to our shores. And again, let us not forget the fisher-people convicted for the miniscule crime for fishing in excised waters to feed their families. Some of them are children.

Lawyer, David Manne set a precedent by challenging the Australian government in the High Court over the lawfulness of the Malaysia option. At this time in the Victorian courts, and it may finish up in the High Court, lawyers are arguing that asylum seekers have a legal right to come to Australia and that perceived people smugglers have a legal right to assist them. In fact they have never done anything unlawful. Indeed, paragraphs 232 and 233 of the Migration Act support this argument.

A few years ago 27 legal experts explained to a Senate Estimates Inquiry that indeed there is nothing unlawful in assisting people with safe passage to foreign shores. The incarceration of people as “people smugglers” is unlawful, and the incarceration of Indonesian youth and children as cooks and deckhands is a human rights abuse. The incarceration of children in Australian adult prisons is beyond comprehensible.

If the Victorian courts uphold the arguments that there is no such thing as people smuggling per se in regards to the “business model” then this will have a wide reaching implication and may expedite the freedom of many. Australia would be best served by working with those humanitarians who risk their lives trying to help others to our shores, and by pulling down the migration walls and raising our humanitarian quota for refugees to, for instance, 50,000 and set an example world-wide.

There remain an affirmed 32 age disputes. Thirty-four have been released. More major organisations are calling for their release and pushing for amendments to the existing laws, and some are calling for compensation and aid to the impoverished villages the children and youth came from. This would be neighbourly and in the common good. I believe there are still up to 100 children languishing, many who may have withdrawn their age dispute. One called me on October 28 to say he is 16 years old, but does not want any more “authority” in his life.

And then there are others who never raised their age as an issue or who settled on an inaccurate date of birth either because of language barriers and a fear of authority and for other reasons few of us understand.

Then there are those children who languish for far too long in immigration detention before being allowed to return home. Sadly, several young people on remand in our adult prisons said to me, “I am scared in prison but prison is better than Christmas Island (detention centre) and Darwin (NIDC) 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.”  

Next article – 10,000 in New York march for jobs

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