WATCH OUT AUSTRALIA - THE KIDS ARE COMING
In February 2012 X Riyan and X Hadi were led into the Perth District Courtroom 7.1 by uniformed security guards.
From their curious titles it seemed the defendants were protected informants in an East Timor spy scandal so given codenames; the reality was more mundane. Many Indonesians have only one name – a fact Australian bureaucracy can’t accept. So both men were labelled X.
Riyan was 28. Hadi said he was 14 and the beardless lad looked like a frightened early adolescent. However the prosecution said he was an adult.
We now know he wasn’t so Hadi is on the list of 122 claimants for compensation from the Federal government. They say they were sent to adult prisons when authorities should have known they were children.
The cases are listed for a management hearing in the Federal Court on 21 February.
Back in the Perth court nine years ago, Riyan and Hadi pleaded not guilty to the charge of unlawfully transporting aliens into Australia. Facing them across the almost empty room (an Indonesian diplomat occasionally looked in) sat the jury of 12 Australian citizens.
Hadi said in May 2010 he crewed a boat carrying coconuts from Java to Flores. Heading back they stopped at Probolinggo on East Java’s north coast. The boat collected 54 Afghan men and headed to sea. On 3 June they were boarded by an Australian naval patrol boat.
Hadi says he didn’t get paid and hadn’t negotiated a salary. The prosecutor thought this incredible. Through an interpreter Hadi explained Indonesians don’t quibble and that he didn’t know where they were going.
There was no suggestion they were the Mr Bigs who’d recruited the passengers and hired the boat.
When sentencing Riyan and Hadi to the mandatory five-year minimum, Judge Richard Keen said jailing would ‘bring home the message’ that Australia treats people smuggling seriously.
Now the message is heading in another direction: Australia must treat those it arrests lawfully.
The lead plaintiff in next month’s Federal Court compensation action is Ali Yasmin from the island of Lembata east of Flores. His story only came to light in 2010 when JP Colin Singer was on an official visit to Perth’s Hakea Prison.
The 1,225-bed jail is no place for the immature and vulnerable. It’s for men remanded in custody or who’ve just been sentenced. Every year around 7,000 murderers, thugs, paedophiles and thieves check in and out of the legal system’s terminal.
Under 18s must be held apart under the 1990 UN Convention on the Rights of the Child. Australia is a signatory. So is Indonesia.
As I reported for Indonesia’s Strategic Review, a doctor told Singer there were kids in Hakea: ‘I thought this impossible. I had great faith in the Australian justice system and believed it to be fair.
‘Then I saw them - they were Indonesians, pre-pubescent frightened children, certainly not men.’ Among the kids he spoke to was Yasmin who had no paperwork to prove his claim to be 14. ‘He was alone and clinging to a fence, clearly traumatized’.
It was fortuitous Singer was on visitor duty at the jail, and not just because he sounded the alert. He’s worked in the oil and gas industry in Indonesia since 1989, is married to an Indonesian, has a home in West Java and could communicate with the prisoners.
Singer claimed 60 juveniles were in WA’s adult jails. The government said there were none because they’d been confirmed as adults by the AFP using wrist X-rays. They referenced a 1942 US bone atlas devised for Caucasians and with a four-year plus-or-minus margin of error. On these grounds it was decided Yasmin was 19.
The Australian Human Rights Commission got involved and concluded Australia had breached international human rights law by giving ‘little weight to the rights of this cohort of young Indonesians’ as prosecutors and police faced pressure to ‘take people smuggling seriously’.
In 2013 TV journalist Hamish Macdonald was the first Australian to visit Yasmin’s family in Indonesia and see school records showing the teen had been born in 1996. The documents were faxed to the Indonesian Consul General in Perth. They weren’t legally verified so weren’t presented as evidence.
Had the papers been accepted by the court Yasmin would have been whisked out of the country. Instead he was convicted and sent to icy Albany, latitude 35 degrees. His island is just below the equator.
Yasmin was put to work in the laundry. Under demands from the Australian Government, WA prison regulations were changed to prevent the Indonesians sending their meagre earnings back to their families. (State jails are used to house federal prisoners.)
Further petty malice showed an anxious electorate the government would stay hard and mean. Some repatriated kids were allegedly dumped in Bali with no means of reaching their remote homes. Only after the International Organisation for Migration got involved were escorts provided and fares back to the villages.
The doubts about ages eventually got too loud to ignore. Yasmin and 14 others were released ‘on licence’ in 2012. Five years later the WA Court of Criminal Appeal quashed Yasmin’s sentence.
The judges wrote they were ‘satisfied that a miscarriage of justice … has occurred. If the appellant was aged under 18 years when he allegedly committed the offence, the mandatory minimum penalty … for an adult, did not apply to him.’
Imagine the outrage if Aussie kids had suffered the same fate in Indonesia. In 2011 the then Prime Minister Julia Gillard got involved in the case of a boy arrested in Bali on alleged drug charges. He was briefly detained then repatriated after a furious media campaign.
The average time spent in detention by the Indonesian kids was 31.6 months. A wrong had eventually been recognised but not righted. Despite all the current legal busyness there’s no certainty the Indonesians will be recompensed for their misery, fear and lost years.
Yasmin is now 25, married and has a daughter. He speaks confidently on the phone in excellent English learned in prison and said he bears no animosity - except towards the defence lawyers who didn’t tell the court they had papers confirming he was a child.
‘Yasmin is an Indonesian hero,’ Singer told this writer last year. “He helped the others settle in. He calmed things down in jail and acted as an interpreter. He’s had a horrendous time but his resilience has been spectacular.
“In all this I found most prison staff to be compassionate. My criticism is for the bureaucrats, politicians and lawyers who turned away from their responsibilities and ignored the rights of children.’
The Guardian has reported the Australian government rejecting most of the plaintiffs’ allegations as ‘scandalous and embarrassing’, and claims of alleged negligence are to circumvent time limitations on the court process.
First published in Pearls and Irritations, 15 January 2021: