ANOTHER AUSTRALIAN STUFF-UP RESOLVED BY TAXPAYERS

  BOAT BOY SHAME  MORE THAN A MINOR MATTER   

The Federal Court is set to endorse a Commonwealth payout to settle a 13-year scandal.

About 220 Indonesian men will share $27.5 million in compensation because  Australian authorities broke international laws designed to protect the weak.

This is the cost of hanging onto a political ideology in the face of escalating uncertainty about proving the age of Asians, coloured by an assumption they lie.

Kids were slammed into adult jails. That’s illegal. Under-18s must be held apart from perverts and brutes under the 1990 UN Convention on the Rights of the Child. Australia is a signatory.

The prime victims of the Stop The Boats panic that gripped Australians last decade are the terrified teens from remote villages on the archipelago next door wrongfully charged as people smugglers.

 The xenophobia was politically weaponised.   Huge sums have been paid to lawyers trying to hammer square dogma into round reality while insisting - as the Attorney General’s office does - that “the rule of law underpins the way Australian society is governed.”

The story started when Colin Singer (right) exercised his conscience.  Had he done so in the Year of Persecuting Whistleblowers he might have been banged up inside Perth’s Hakea Prison.  But in 2010 the JP was an ‘official visitor’ bailed up by medical director Dr Brian Walker.

“He told me there are kids in here,” Singer said later. “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  pre-pubescent frightened children, certainly not men.”

The striplings were former deckhands hired by people smugglers to help ferry asylum seekers fleeing conflict zones and who’d made it to Indonesia.

Singer spoke to Ali Yasmin (later to become the lead plaintiff and get a separate $40,000 award)  from tiny Lembata island more than 1,000 km east of Bali. "He was alone and clinging to a fence, clearly traumatized," Singer recalled.

Tough, said the Australian Federal Police, take it like a man because we have proof. A wrist X-ray that referenced a 1942 US bone atlas with a four-year plus-or-minus margin of error determined Ali was 19. 

He was 14, but couldn’t prove his age. Jobless lads hanging around harbours don’t carry  passports. He quit school at 12 to support his mother after his Dad died knowing little of the outside world.

A letter from Ali’s principal confirming his 1996 birth date and organised by TV journalist Hamish Macdonald was rejected because it wasn’t a sworn statement.  

There’s no evidence of Australian or Indonesian agencies visiting the school to get the paperwork right.

(Lawyers acting for Yasmin have told him not to talk to the media until the settlement is endorsed.  Requests for a compromise have been ignored.)

Meanwhile the adult smugglers did OK - and in a perverse way have lifted our image. Their actions were illegal but a civilised state’s must be legal - no bashings or, thrashings.

Nurdin Tanal (left), now 47, admits his wrongdoing, pocketing $3,500 to captain a fully-provisioned boat organised by an Arab speaker in Jakarta whom he never met.  His wife Hajija Buja (also left)  used the money to build a new house in the village of Waipare on Flores - a largely Catholic island 1,200 km east of Bali.

But he didn't get to see it after being jailed in Brisbane for carrying 44 people from Iraq, Iran and Afghanistan - including a breast-feeding mother.  When Nurdin realised they'd paid around $10,000 each for the three-day trip, he reckoned he'd been cheated.

  “I’d go back to Australia tomorrow if it was legal,” Nurdin told Michael West Media.  “I was suddenly released and told I was not guilty. I came home with almost $2,000, for working, given by Aussie friends, and the Indonesian Embassy.”

Wuring is a Muslim village.  Rayah, 62, (right)  is the go-to gossip. the snack seller at the port entrance.     Though she's never been Down Under, her info gleaned from locals makes her a splendid influencer:  "Australia good.  You look after people."

 Like shark-fin fisher Abdul Muthalib ( left), rescued off Darwin by the RAN.  He said in an Adelaide jail he was paid to clean mess rooms, treated well and never suffered discrimination.    

 In 2012 the Australian Human Rights Commission published An Age of Uncertainty.  The 331-page report found the wrist X-rays "an inherently flawed technique …unreliable and untrustworthy."

Like Robodebt the system hugged its wrongs when it should have been hugging the wronged.  As they were shuffled through the bewildering system, scores of officials, many of them parents,  must have been struck by the doubts that upset Dr Walker.

Also slow to mature was PM Anthony Albanese’s “Australian instinct for fairness, decency and care and respect for each other.”  His assessment was made before the Voice referendum results.

Singer said he found most prison staff compassionate: “My criticism is for the bureaucrats, politicians and lawyers who turned away from their responsibilities and ignored the rights of children.”

Like fallen trees blocking roads, the facts got too big to drive around. Ali and 14 others were released 'on licence' in 2012 and headed home.  The WA Court of Criminal Appeal quashed their  sentences, "satisfied that a miscarriage of justice has occurred."

I saw my first child 'people smuggler' in a Perth court in  2012 -    X Hadi,  standing with an adult X Riadi.   Many Indonesians have only one name – an actuality Australian bureaucracy can't handle.  The label X is usually reserved for witnesses who can't be identified.

The ‘Mr Big’ organisers of the vile trade were absent. Few accompany their customers on overseas trips.

Through an interpreter, the men pleaded not guilty to "unlawfully transporting aliens" - the fishermen call them “black goats”. Facing the accused was a jury of a dozen  Australian citizens and several confident Afghans keen to back the prosecutor's story of their voyage to freedom.

Hadi said he'd crewed a craft carrying coconuts that later collected 54 foreign men. A lawyer asked why he didn't sniff illegality, jump ship and report his suspicions.  The question made no sense culturally or practically.  Some police have allegedly  been involved in the rackets.

The boat was seized by an Australian naval patrol and tagged SIEV (Suspected Illegal Entry Vessel) 86.

Australians arrested abroad arouse the tabloids and TV squawkers to demand rapid repatriation to escape dodgy foreign justice.  

The Indonesian government seemed unconcerned about their X-men.  Outside the court, an official explained prisoners "get good food, high quality medical care, and earn $30 a week doing kitchen chores."

Laws to calm public terrors of a tsunami of Asians tied the hands of the sentencing bench - five years mandatory. Judge Richard Keen said prison would "bring home the message that Australia treats people smuggling seriously."  

It didn’t; the Federal Court's message is that Australia stuffed up. Finding the beneficiaries will be tricky - those still fishing are often itinerants. Distribution of the compo has yet to be determined, but probably around $125,000 each.

The average time spent far from home was 950 days -  130 bucks per nightmare.  Had they sought a template - like parity with Federal politicians' away-from-home allowances - payouts would have doubled.   

Paradoxes abound.  While jailing kids was morally and legally wrong, the policy may have helped deter the smugglers.  While compensation is right it may encourage the exploiters to try again.  

Posters at Indonesian ports once warned of the dangers.  They’ve vanished, like the estimated 1.720 who tried to reach the promised land last decade. All the more reason for Canberra and Jakarta to talk seriously.

The PM reportedly claims  “remarkable progress” on agreements about defence.  How about human lives?

 

 

Duncan Graham has an MPhil degree, a Walkley Award, two Human Rights Commission awards and other prizes for his radio, TV and print journalism in Australia. He lives in East Java.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

First published in Michael West Media, 23 December 2023: https://michaelwest.com.au/indonesian-people-smugglers-wrongly-imprisoned-finally-compensated/

WHY AUSTRALIANS CAN'T LECTURE ON HUMAN RIGHTS

 

                                        A wristful of wrongs

Safely home;   Ali Yasmin and Ibu  (Photo Republica)

On some lists we’re world leaders in shame.  Like locking up and brutalizing children as Four Corners has shown – and not only our own. We’ve treated Indonesian kiddies just as badly.

Like getting algorithms to retrieve real or imagined welfare debts, it seemed a good idea at the time. Jail every Indonesian deckhand to send their ambitious mates a message: Don’t you ever dare work for people smugglers.

Like Robodebt, some Stop the Boats policies were cruel and illegal.  Now they could be costly.

Back in 2009, a wave of fear was washing over the electorate.  Scores of Indonesian fishing boats were ferrying asylum seekers – originally from Iran, Iraq, Afghanistan and other dysfunctional regimes – across the Arafura Sea to Australia.

The dread of invasion dictated flawed responses, a mess of ill-considered laws, displays of cultural ignorance and bad decisions.

Now the wrongs may be redressed.

Around 130 Indonesian men who claim they were illegally arrested and jailed in Australia want compensation. After years of denials and delays, the Federal Court has ordered all parties into mediation to determine damages.  The deadline is next March.

Thirteen years ago and way off the Northwest coast big Australian men in uniforms were questioning small Indonesian boys in ragged shorts and T-shirts caught on boats laden with asylum seekers. Names, addresses, jobs – all the usual stuff. But the critical query was age.

The deckhands said they were teens but had no documents.  The solution seemed smart – wrist X-rays using a 1942 US bone atlas devised for Caucasians.  The margin for error was plus-or-minus four years.

Such was the political panic that it seems no fearless official unzipped a conscience and said: ‘Hang about, this is all too shonky.  We’re Aussies.  We do the right thing – and this isn’t it.’

That moment only came in April 2010 when Justice of the Peace Colin Singer was on a routine visit to WA’s Hakea jail for men.  Under 18s are children and must be held apart from adults under the 1990 UN Convention on the Rights of the Child. Australia is a signatory.  So is Indonesia.

The 1,225-bed prison ‘manages male prisoners who have been remanded in custody while waiting to appear in court or those who have just been sentenced’.  So murderers, thugs, pedophiles and thieves check in-and-out of the legal terminal queue together. Around 7,000 a year are processed.

Singer was on duty for the Office of Custodial Services, an independent statutory authority charged with checking that inmates get treated decently.

A doctor told Singer the jail was housing kids. ‘I thought this impossible. I had great faith in the Australian justice system and believed it to be fair,’ he said at the time. ‘Then I saw them - they were Indonesians, pre-pubescent frightened children, certainly not men.’

Singer knew. He’s a businessman who has worked in the oil and gas industry in Indonesia since 1989 and is married to an Indonesian.

Among the kids he spoke to was Ali Yasmin (also known as Jasmin), from a tiny island east of Flores. ‘He was alone and clinging to a fence, clearly traumatized,’ Singer recalled.

He claimed 60 juveniles were in WA’s adult jails. The government said there were none because Yasmin and others had been confirmed as adults by the wrist scans.

Two years later the Australian Human Rights Commission published An Age of Uncertainty, an inquiry into ‘an inherently flawed technique’. It said the wrist test had been publicly condemned by specialists and professional medical societies as ‘unreliable and untrustworthy.’

Singer said he got the impression that nothing would be done that might disturb relations with Indonesia, then at a high following a successful address to the Australian Parliament by former President Susilo Bambang Yudhoyono.  Then the media got involved.

In 2013 a TV journalist found Yasmin’s family and the boy’s school records.  These showed their son had been born in 1996, meaning he was 13 when arrested.

The documents couldn’t be used as evidence because they weren’t legally verified.

The people smugglers safe in Jakarta had already got their cash.  Undeterred they continued selling high-price passages to Australia while the beardless youngsters they recruited were doing time to ‘set an example’ – and show voters the government was tough. 

Yasmin worked in the prison laundry.  Regulations were changed to stop the Indonesians from sending their meagre earnings to their families. (State jails are used to house federal prisoners.)

Further petty malice was devised to show Canberra wouldn’t slip into solicitude.  Some repatriated kids were dumped in Bali with no means of getting back to their remote homes.  Only after the International Organisation for Migration got involved were escorts provided and fares back to the villages.

In court proceedings watched by this writer the accused were labelled ‘X’ because the system doesn’t recognize – or care – that many Indonesians have only one name.  That includes the nation’s first two presidents.

Proper legal procedures may have been followed but the rules don’t include common sense. Why didn’t the Indonesian government scream outrage and fan an international crisis?  And why weren’t there more agitators?

Singer wouldn’t stop. The doubts about age 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 his sentence. 

Yasmin is now back home, married and a Dad.  The class action is in his name.

The average time spent in detention by the Indonesian kids was 31.6 months.  Egregious errors were eventually 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.

Imagine the outcry if an Australian child had been locked in an Indonesian slammer. In 2011 then Prime Minister Julia Gillard got involved in the case of an Australian teen arrested in Bali on drug charges.

The boy was briefly detained and then repatriated after a furious media campaign.  

 ‘Yasmin is an Indonesian hero,’ said Singer.  ‘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.’

Next year we should know if the government will front up to its faults.  Or will we need a royal commission? 

 First published in Pearls & Irritations, 20 November 2022: https://johnmenadue.com/would-you-send-a-13-year-old-child-to-adult-prison/