RI KIDS IN OZ JAILS SEEK COMPO

An international wrong                           

For the last few months Australian lawyers and their fixers have been scouring remote villages in the eastern islands of the world’s largest archipelago.

They’ve been seeking young Indonesian men illegally jailed in Australia’s adult prisons earlier this decade alongside hardened criminals and sex offenders. 

The men were sentenced for crewing people-smuggler boats. Yet they were children at the time and under the law should have been repatriated.

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 an Australian teen arrested in Bali on alleged drug charges.

The boy was briefly detained then repatriated after a furious media campaign.  This much larger and more serious case got some coverage at the time, but has since slipped below the horizon.

So far 123 young men have signed up to a class action for compensation. Another ten to 20 could join if they can be traced.  The lawyers say they are waiting for a formal response from the Australian Human Rights Commission (AHRC) . In turn it’s hanging out for comment from the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions.

The illegal jailings could have been blamed on sloppy bureaucracy compounded by cultural ignorance.  But political factors were also in play.  The Australian Government has been exercising tough laws to placate voters fearful of a tsunami of asylum-seekers from Sri Lanka, Afghanistan, Iraq and Iran transiting Indonesia, while at the same time cosying up to then Indonesia President Susilo Bambang Yudhoyono, known as SBY.

If there’s no out-of-court settlement the claimants will head to the Australian Federal Court.  If successful their win could cost Australian taxpayers millions and make the victims rich.

So far, so good. But this tale is tangled.  There’s a dispute between Australian and Indonesian lawyers over representation and jurisdictions.

If the victims get nothing the bitterness could linger for years. Whatever the outcome Australia’s reputation as a compassionate nation that honors international law and doesn’t put kids in adult prisons has already been shredded.

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The story started eight years ago.  The whistle-blower was Justice of the Peace (JP) Colin Singer.

The West Australian doesn’t need to scratch his balding dome or flick through old diaries to remember the date with precision.

It was 9 am on 23 April 2010 and Singer was paying a routine visit to Western Australia’s Hakea Prison in the Perth suburb of Canning Vale.

According to the Department of Justice the 1,225-bed jail ‘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, paedophiles and thieves checking in and out of the legal terminal, queue together. Around 7,000 a year go in and out.

JPs like Singer are unpaid community-minded citizens nominated by members of Parliament or magistrates.  They witness signatures, approve police search warrants and in remote areas sometimes sit in courts to hear minor charges.

On that Friday Singer was on duty for the Office of Custodial Services, an independent statutory authority charged with monitoring jails and checking that inmates are treated decently.

Hakea is for men, not boys.  Children, defined as those under 18, must be held apart from adults under the 1990 UN Convention on the Rights of the Child. Australia is a signatory.  So is Indonesia.

In the jail Singer was approached by the medical director Dr Brian Walker. “He told me: ‘there are kids in here’,” Singer told the Strategic Review. “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.”

The prisoners were deckhands hired by people smugglers to illegally ferry asylum seekers fleeing conflict zones and who had made it to Indonesia. They then sailed for Australia on Indonesian fishing boats but had been caught by the Australian Navy.

Singer is a businessman who has worked in the oil and gas industry in Indonesia since 1989. Originally from Scotland he’s an Australian citizen married to an Indonesian and with homes in West Java and Perth.

Among the kids he spoke to was Ali Yasmin (also known as Jasmin), from the basic settlement of Balauring on the tiny island of Lembata east of Flores. “He was alone and clinging to a fence, clearly traumatized,” Singer recalled.

Yasmin told Singer that in December four Indonesian men and 55 Afghans were on the wooden craft labelled by the Australian Navy as SIEV (Suspected Illegal Entry Vessel) 86.  He said he’d been offered 15 million rupiah (US$1,000) to work as a cook.

To Australian prosecutors that sum - equal to a year’s work or more - was proof the teen knew something wrong was afoot.  But Western reasoning doesn’t work in a tiny village more than 2,500 kilometres from cosmopolitan Jakarta. 

If a stranger from afar rocks in and offers big money for a small job why check the dentures of this gift horse? Yasmin, who quit school at 12 to support his mother after his Dad died, said he knew little of the outside world and nothing about people smuggling.

He also said he was 13 and the youngest on board, but wasn’t believed because he had no identification. Westerners abroad carry driving licences, credit cards and passports proving ID, but not hangabout Indonesian kids taking one day at a time.

“I immediately contacted the Department of Justice and the Indonesian Consul General in Perth,” said Singer  “I was naive.  I thought this was an administrative error that would be rapidly fixed.  I was wrong.” 

Singer 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 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  that Yasmin was 19. 

Two years later the AHRC published An Age of Uncertainty, an inquiry into ‘an inherently flawed technique’. It said the wrist test had already been publicly ridiculed by leading specialists and professional medical societies as ‘unreliable and untrustworthy’.

But at the time voter fear of boat people had become almost paranoiac; the AFP dismissed the doubters and recruited Perth radiologist Dr Vincent Low to verify the procedure.

AHRC Commissioner Catherine Branson’s 313-page report found that ‘the evidence is overwhelming that using skeletal age to assess chronological age is an imprecise technique...

‘…the AFP, the Office of the Commonwealth (Australian) Director of Public Prosecutions and the Attorney-General’s Department engaged in acts and practices that led to contraventions of fundamental rights; not just rights recognized under international human rights law but in some cases rights also  recognized at common law, such as the right to a fair trial.’

Although the document made no reference to compensation, calls for redress came from Indonesian lawyer Lisa Hiariej who has been working through Jakarta courts.  More of her later.

Singer continued to pursue the issue because “when you encounter a moral wrong you can’t let it rest”.  However he frustrated journalists by refusing to have his name revealed, even demanding his voice be altered on TV lest he be banned access to the prisoners.  The ploy fooled few for there were no stirrers so agitated and identifiable as Singer with his strong Gaelic brogue.

Certainly the Australian government knew because Singer says he was called into the Australian Embassy in Jakarta; he said he was asked whether he was associated with the Greens political party  - a weird question to someone in the mining industry. 

Singer said he got the impression that nothing would be done which might disturb relations with Indonesia, then at a high following a successful address to the Australian Parliament by President SBY

Singer was also vice president of the Perth-based Non-Government Organization, the Indonesia Institute (II). President Ross Taylor alerted the media.

In 2013 TV journalist Hamish Macdonald was the first Australian to visit Yasmin’s family in Balauring where he saw school records.  These showed the lad had been born in 1996, though there were discrepancies over dates.

The documents had been faxed to the Indonesian Consul General in Perth but Yasmin’s defence lawyer David McKenzie told Macdonald they were legally unverified so could not be admitted as evidence. 

The child was then sentenced to the mandatory period of five years jail as a people smuggler under a new Australian law which was supposed to scare these villains into halting their noxious trade.

Human rights lawyers object to mandatory sentences claiming these are often introduced as populist measures, can lead to unfairness and miss their targets.  In this case the law of unintended consequences took over. 

The people smuggler Big Guys safe in Jakarta had already got their cash.  Undeterred by Canberra’s chest-thumping they continued selling high-price passages to Australia while the beardless youngsters they recruited were doing time. 

Why didn’t the court view the scared lads in the dock not through an X-ray tube but the consciences of Singer and the Hakea Prison staff who saw “pre-pubescent frightened children”? 

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? (The Greens have been prominent along with some Labor Party  politicians.)

Had the papers been presented and accepted by the court, Yasmin would have been whisked out of the country. Instead he was sent to prison in icy Albany, WA’s most southerly town, latitude 35 degrees. His hometown Balauring is just below the equator.

Yasmin was put to work in the prison 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.)

There was further petty malice to show an anxious electorate that no way would government resolve slip into solicitude.  When some kids were eventually repatriated they 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.

Singer kept pushing.  In the early stages he was a gruff and prickly personality who tended to headbutt issues and fire off clumsy statements. In retrospect this may have been the right way because it made him a compelling force not easily dismissed and a counterpoint to the tractable Indonesian deckhands signing anything on an official’s clipboard.

II president Taylor described them as ‘generally the most liked, respected and cooperative people to be ever apprehended in Australia’.

Singer’s approach put him at odds with the more diplomatic Taylor,  so Singer quit the NGO and went public. He remains appalled at the kids’ plight but now he’s more measured. “This experience has changed me - and for the better,” he said. Taylor and Singer have since reconciled.

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 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.’

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.

The AHRC cannot order compensation.  It can only ask questions and try to conciliate. If the Government won't play ball then the lawyers can ask a court to order compensation.  This process can take years and decisions can be appealed. 

Canberra legal firm Ken Cush and Associates says it is acting pro-bono for the former detainees and taking a racial discrimination position. Practice lawyer Sam Tierney said there was no formula for compensation.

“We are comfortable that there are substantial grounds to show the Commonwealth has racially discriminated against these children resulting in their improper treatment and detention,” he said via e-mail.

“If the Commonwealth chooses not to compensate the children, we will litigate the cases and ask the Federal Court to determine the cases and entitlements to damages.”

Sounds good, but the success rate isn’t encouraging. The Australian Institute of Criminology reports that 'most Australian jurisdictions are not generous, nor are they transparent in awarding compensation ...most wrongfully convicted people in Australia do not get any compensation'.

Ferdi Tanoni, who lives in Kupang on the island of Timor in the Indonesian archipelago, has been the go-to guy for Australian supporters of the former prisoners living in the east end of Indonesia. 

He also chairs an ‘advocacy team’ fighting for compensation through Australian courts for seaweed farmers allegedly affected by the 2009 Montara wellhead oil spill off the WA coast.

“I tell the boys that although the lawyers I’ve spoken to believe there’s a 70 per cent chance of success, the case could take a year or more,” he said.  “In the end they may not get anything. I tell them to keep praying.”

Back in Balauring Yasmin was alarmed to read the appeal decision was headed ‘Yasmin v The Queen’, and asked how he’d harmed the monarch.  This took some explaining, as it would to many Australians. (‘The Queen’ is the legal term for the State.)

Yasmin said he was optimistic that he’d eventually get some money.  Now 22 he’s married and has a daughter.  He speaks confidently on the phone in excellent English that he learned in prison and said he bears no animosity - except towards the defence lawyers who didn’t tell the court they had the papers confirming he was a child.

“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.”

Meanwhile more snafus in Indonesia.  Last year Lisa Hiariej, the lawyer who four years earlier had said she was seeking compensation, appeared in the Jakarta District Court claiming to represent Indonesian boys held in adult prisons in Australia between 2008 and 2012.

She said some of her clients had signed up with Ken Cush but they had returned to her after she’d visited them in Kupang in February this year.  Speaking by phone from Jakarta she said:  “I have the power of attorney for 115 boys and I’ve been working on this for six years.

“This is my case.  These are uneducated people, many don’t even speak Indonesian, (meaning they speak a regional language) and so they just sign. I won’t go to the AHRC and there’s no way I can work with the Ken Cush lawyers.

“I am disappointed; this (the tussle over representation) is so sad. I’m only doing this for the kids. I’m asking for one trillion rupiah (US$100 million) to be split among the boys. 

“It has cost me about US$150,000. I’ve financed everything by myself and with my family.  There’s been no support from political parties or religious groups, only backing by the KPAI.” (Komisi Perlindungan Anak Indonesia - the Indonesian Child Protection Commission).

In March this year the Jakarta Court ruled against Hiariej’s claim. “The case is now in the  Pengadilan Tinggi (High Court ) for appeal,” she said. 

“If unsuccessful I may refer the case to the International Court of Justice.”

The Australian Government didn’t attend the earlier Jakarta hearing arguing that the court has no jurisdiction over Australian matters. 

“Ms Hiariej has no role with our firm,” said Tierney. “Some of our clients were previously represented by Ms Hiariej but have withdrawn those instructions and revoked any authority that Lisa may have had to act on their behalf including in any Indonesian Court proceedings.”

If the tortuous legal road looks likely to end in a dead end, political lobbying to pay up and shut down the shame may be the better recourse.

“Imagine the outcry if an Australian child had been imprisoned in Indonesia,” Singer said. “We’d have public outrage, ministerial involvement and condemnation of the Indonesian judiciary.

“Yet when it’s the other way around the majority have no interest at all.  We think Australia is better than other countries. It saddens me to say that we are not.”

The Fisher’s Story

I saw my first Indonesian people smugglers in February 2012.  They were X Riyan and X Hadi and they were being led into the Perth District Courtroom 7.1 by uniformed security guards.

From their curious titles it seemed they were protected informants given codenames; the reality was more mundane but a telling example of cultural differences.  Many Indonesians have only one name – a practice that Australian bureaucracy can’t accept.  So both men were labelled X.

Riyan was 28; Hadi’s age was unknown but the prosecution said he was an adult. We now know he wasn’t and is on the list of claimants. Through an interpreter they pleaded ‘not guilty’ to the charge of unlawfully transporting aliens into Australia.

Facing them across the wide and almost empty court (an Indonesian diplomat occasionally popped in as an observer) sat the jury of 12 Australian citizens. 

Also confronting them as witnesses for the prosecution were several smartly dressed and confident Afghan men who had sailed with the Indonesians and were now living in the Australian community as legitimate refugees. They confirmed the prosecutor’s claims.

Hadi’s statement said that in May 2010 he crewed a boat carrying coconuts to  Flores. The job done, he thought they were heading back to Batam, a small Indonesian island near Singapore.

Instead they went to Probolinggo on East Java’s north coast. Offshore and at night the boat collected 54 Afghan men and headed west, then south. On 3 June they were boarded by the Australian naval patrol boat HMAS Maryborough.

Hadi says he didn’t get paid and hadn’t negotiated a salary. Prosecutor Anthony Eyers thought this incredible. Through an interpreter Hadi replied that Indonesians don’t quibble and that he didn’t know where the boat was going.

But, responded Eyers,  inside the hull was water and food along with lifejackets and mattresses.  So why didn’t Hadi protest when the Afghans clambered aboard, and demand to get off?

He told the court he was seasick at the time. 

The Head of Chancery at the WA Indonesian Consulate-General office, Syahri Sakidin, said Hadi had tired of constant questions about his age.  Speaking outside the court he said: “In prison he gets good food, high quality medical care, and earns AUD $30 (US$22) a week doing kitchen chores.

 “The people smuggling mafia are using poor fishermen …you have to understand the irony. It’s shameful they’re getting money that way but you have to see it through their eyes.”

When sentencing Riyan and Hadi to the mandatory five-year minimum (they have since been deported), Judge Richard Keen said jailing the men would “bring home the message” that Australia treats people smuggling seriously.  

The message settled well with Australian voters, less so among the estimated 14,000 mainly Middle-East asylum seekers still squatting in Indonesia with little hope of making it to the Great South Land.

The boat people trade now appears to have sunk, but not the cargo of legal and moral wrongs.  Recovery is taking years,and may never be successful.

(First published in Strategic Review, 4 March 2019:  https://sr.sgpp.ac.id/post/An-international-wrong

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