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Issue #1518      14 September 2011

Release children from adult prisons

There are near one hundred of the world’s most impoverished children incarcerated, whether on remand or sentenced, in Australian adult prisons. The biggest numbers are in West Australian adult prisons.

It has been confirmed to me by various authorities and by an Indonesian Vice-Consul that at least 16 of the age-disputes are in HAKEA Correctional facility, a maximum security prison which I have visited on a number of occasions over the years. There may be up to 40 age-disputes in West Australian adult prisons.

On July 20 I spoke in person to Prime Minister Julia Gillard about what she has long known about, and that is the fact of children in Australian adult prisons. We were surrounded by the various news media and as we held our handshake her smile froze into a startled lingering silence, as if she expected a full-blown scandal; however a scandal-in-waiting it remains.

After many months of behind the scenes campaigning by people like myself and various lawyers throughout the country, some children have now been released. Even after some high profile campaigns for those who we believe to be children, such as Hadi Kurniawan who continues to languish in HAKEA, and of Ardi in Brisbane, and of the three boys from Brisbane’s Arthur Gorrie Prison who were bailed out and then released after charges were dropped by the Queensland Commonwealth Prosecutors, the majority of age-disputes continue to remain in prison. (See Guardian #1509, 13-07-2011 Hadi Kurniawan – one of 100 children in Australian adult prisons.)

These children are having their ages disputed by the Australian Federal Police and hence by the Commonwealth purely through the “results” of “wrist-bone age-scans”.

The only remedy offered is piecemeal and insulting, and that was from the Home Affairs Minister Brendan O’Connor who declared that the ‘wrist-bone age-scans’ would be coupled with ‘dental x-rays’ so as to improve the determination of age.

Child Commissioners world-wide, child health experts, paediatric endocrinologists and radiologists have discredited this approach.

Firstly, the wrist-bone x-rays cannot accurately determine age and radiologists should not be using them to do so, nor should they be paid to do so. These x-rays determine skeletal growth, that is they measure bone fissures, and assumptions exist as to the age that bone fissures may close. There is a non-specific measure for well-nourished Australian youth that this may occur thereabouts at 17.7 years of age. This is a median rather than a specific measure.

Age is not measured on mature bones, only estimations on bones such as the ulna in terms of growth and when the closing of fissures may occur. However, for under-nourished youth, or those who may suffer excessive illnesses and progeria-like conditions, their bone fissures may close years earlier. Simply, these scans are not measures of age and rather evidence of skeletal growth. Furthermore, when it comes to children and in better detemining their physiological age it should be paediatric endocrinologists who are consulted and certainly not radiologists. Radiologists are not paediatric experts.

Secondly, the dental x-ray scan, which is yet to be used in Australia, although put out as the “solution” by Minister O’Connor, is not failsafe in terms of age-determination. This is the problem, neither of the x-ray scans are failsafe.

I have contacted the Office of the Commissioner of the Australian Federal Police and asked his Office to lead the way with advocating for appropriate age-determination protocols as they are the ones caught in the middle of the Commonwealth’s indiscriminate policies.

I have contacted the Australian Human Rights Commission and they are now considering a National Inquiry – I can only hope they launch it, otherwise people like myself and various lawyers will be encumbered in what we can and can’t do, and we will be limited in working in piecemeal ways to free the children, one at a time. What about the children who are incarcerated and we do not know about?

There has been no political leadership at the federal level, and this includes the Australian Greens, who have shied away from taking on this horrific situation – not one Australian Senator has raised a question in the Senate. Believe you me, I have been to everyone.

As I said to our Prime Minister, we need appropriate age-determination protocols, and these include working with the Indonesian consular officials, whom I personally do know are affronted by the thus far discourteous disregard by the Australian government and various bureaucracies, and for our authorities to work with the relevant authorities in Indonesia to ascertain the ages of those who present themselves on our shores.

It is incorrect for anyone to state that there is no evidence of their ages or dates of birth in Indonesia – there is evidence. There is always evidence, whether of a provincial, village based or on a National Census type record. It may take some time to acquire these records but let us put in the effort.

Our authorities need to err on the side of caution, and either place these young folk in appropriate care or within an appropriate jurisdiction till such time as we have ascertained age beyond a reasonable doubt. This is not rocket science.

Australia has shattered its party to the UN Convention on the Rights of the Child.

I am not aware of anyone who claimed to be a minor who has been proven to have “lied”, only of the fact that the courts do not consider that there has been adequate evidence placed before them to displace the presumption of evidence from the wrist-bone age-scan. We are all aware of a number of children, as young as 14, who have spent a year in an adult jail and who were proven to be minors and hence released.

If in time a few are proven to have falsely stated that they were minors the majority will be proven children, and let us err on the side of caution so that no one slips into injustice. Let us amend our policies and laws in such a way as we get this right. The burden of proof in terms of ascertaining age beyond a reasonable doubt must be with the Commonwealth.

I hope to work with AFP and various bodies to put together a complete register of the age-disputes Australia-wide and to travel to Indonesia to aggregate the certified evidence admissible to our courts so as to expedite the release of children from our adult prisons. However, should we have been placed in this position to do so? That is the predicament.

In time, as with the High Court decision that damned the Malaysian “Solution” so will we one day realise that cooks and deckhands who assist in the safe passage of asylum seekers to our shores are lawful in their actions. For some of us, we deem their actions humanitarian and heroic.

Gerry Georgatos is the convener of the Human Rights Alliance.  

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