Disabled boy freed from adult jail

Natalie O'Brien
November 13, 2011

AN INTELLECTUALLY disabled Indonesian orphan who was found to be a teenager has been freed from an adult Sydney prison and had people smuggling charges against him dropped.

The boy, from Pantar Island in Timor, will soon turn 16 and has been held at Silverwater jail for almost two years.

The federal government is under pressure to abandon its prosecutions against such children after an investigation by The Sun-Herald last week revealed that about 50 Indonesian boys enticed into acting as cooks and crew members on asylum seeker boats had been arrested on people smuggling charges and held in adult maximum-security prisons around Australia. Advertisement: Story continues below

This latest case is the 33rd time prosecutors have dropped charges against Indonesian children held in prisons after Australian Federal Police used a discredited wrist X-ray test to prove a detainee was aged over 18 and could be charged with people smuggling offences.

In a landmark decision on Friday that could affect dozens more cases involving Indonesians before the courts, the West Australian District Court ruled the X-ray unreliable and the methodology flawed.

Judge Philip Eaton made the decision in the case of a 14-year-old who has been kept in maximum-security adult jails in Perth for two years awaiting trial for people smuggling. In his case the boy had already supplied a birth extract and school records to prove his age but the police did not believe him.

In Sydney, at least nine Indonesians who claim they are children are being held in Silverwater jail and two in the Long Bay Correctional Centre.

It is federal government policy not to charge children crewing on asylum seeker boats but to send them home. The police say they have sent back dozens of boys. But those they do not believe are under 18 have been subjected to the X-rays which, officers say, is the only prescribed method of age determination under legislation.

But the X-ray has been discredited by world experts, UNICEF and the Australian Medical Association.

Edwina Lloyd of Blair Criminal lawyers, the lawyer for the orphan boy, whose name cannot be revealed because he is under-age, said things must change. ''How about picking up the phone and calling mum and dad before forcing a discredited technique to be carried out which has resulted in many Indonesian children being locked up in maximum security jails?''Ms Lloyd said. She had travelled to the boy's village to gather evidence about his age and said he was so intellectually impaired that when the case was formally discharged in court last week the teenager did not understand he was going home.

After speaking to him in the police cells, Ms Lloyd said the boy was afraid and had said: ''I can't go home if I have to go on my own I don't know how to find my way home.''

Ms Lloyd said the teenager's aunt, uncle and sister had not been notified about his arrest.

''There needs to be strict protocols whenever an Indonesian person who claims to be a child is arrested. Their family needs to be contacted - it is a basic responsibility,'' she said. ''If this were meant to be real deterrence, then the authorities would be on the phone ringing their villages and telling people they have been busted for people smuggling.''

The Greens senator Sarah Hanson-Young said it was ''staggering'' that the Attorney-General's Department had no protocols for determining the age of minors caught up as crew on asylum seeker boats.

A spokeswoman for the Attorney-General, Robert McClelland, said the federal police and Indonesian police were discussing ways to improve age determination.

The Sydney barrister Mark Plunkett, who has been investigating the cases of Indonesian children caught up in the Australian legal system, said someone needed to take responsibility.

''We have their [overseas] addresses, they can go and speak to mum and dad and find out,'' he said. ''If they decided to, these cases could be cleared up by Christmas.''



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