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/

THE LAND OF THE UNFAIR GO

 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: 

https://johnmenadue.com/children-in-prison-shame-australia-shame/

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.

--------------------------------------------------------------------------------------

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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