By Gerry Georgatos

Ali Jasmin was 13 years old when the Commonwealth of Australia locked him up in an adult prison for being a deckhand on a boat of Asylum Seekers, and hence for assisting people in the safe passage of Asylum to our shores. International maritime laws and the various United Conventions and protocols asserting the rights of those seeking Asylum would cast this young boy as a hero, and rightfully so however not the Australian government and its institutions.

Like many Indonesian mothers who have had to accept that their children are in Australian adult prisons so did Ali’s mother Aniza – and like all the other mothers approached by us, the Australian news media, and Australian lawyers we realised her disenfranchisement from an ability to be able to do anything from within what would seem to us an impoverished village circumstance. Like all the mums she cries for her child and vests her hopes in her child’s resilience – although she cries out he is only a young boy – to see out an Australian adult prison experience.

Ali, like so many others – like Hadi Kurnawian; who volumes have been written about – languished in a West Australian adult prison. The brunt of what the Commonwealth will only acknowledge at best as “age-disputes” are either on remand or convicted and languish in West Australian adult prisons. At this time, thanks to tenacious advocacy from individual Australian citizens the plight of these children has come to the light of day and preserved by various inquiries and which are still underway – however at this time there are now 25 cases (children) being reviewed by the Office of the Federal Attorney-General – three of them have been recently released as the Office of the Attorney-General acknowledged that there appears doubt over their ages (as asserted by an interpretation from a wrist-bone scan), and that there appears considerable evidence to support they are minors – and hence they are going home – well unfortunately only three more children at this time – it’s been an exhaustive struggle to free these children however the struggle continues for those that remain unjustly incarcerated.
Ali Jasmin, who was born in 1996 has been released, and word is that Hadi Kurniawan who was born in 1995, may also finally be released and therefore both on their way home – at long last.

The Australian government and its agencies, including the Office of the Foreign Minister and the Office of the Attorney-General, have degenerated to pathos, to the keystone, to the ludicrous. The Act under which perceived “people smugglers” are defined and charged does not include a capacity for charges being laid against minors and therefore Australia’s official policy is that children are returned to Indonesia – the policy stipulates that if there is any doubt whatsoever in that someone may be a minor then the government shall err on the side of caution and therefore return them to Indonesia – this has been publicly articulated by the Offices of the Attorney-General and the Foreign Minister, the incumbent and their immediate predecessors – however the policy – the official position – has been contravened again and again and again.

After three years of exhaustive campaigns from human rights advocates – ordinary Australian citizens without the resources of the Australian government, the Australian criminal justice system, the Australian Federal Police and of the Australian Security Intelligence Operations – Ali Jasmin has been released. The three boys released had reached the end of their non-parole periods, such was the length of their sentence and substantive teenage years, formative years spent in Australian adult prisons, which I have often written about as failed systems which enshrine criminality and give rise to re-offending, various recidivism and the breaking of the human spirit.

Their sentences were five years with a three year non-parole period.On July 20 2011, face to face I put it straight to the Prime Minister of Australia, Julia Gillard, “Julia, you must be aware that you are the Prime Minister of a country that has incarcerated Indonesian children in our adult prisons, at least 70 children – 13, 14, 15, 16 years old. They need to be released en masse and in line with the policy in place requisite that we err on the side of caution in terms of any doubt over their age. You need to implement appropriate and adequate age-determination protocols and something towards this must be tabled immediately, you cannot rely on a discredited and non-failsafe bone-density scan, and you must maintain Consular protocols with Indonesian authorities.”

The Prime Minister, frazzled by what I put to her – appearing to be intimidated by a scandal-in-waiting – merely thanked me for this information however what has continued to occur indicates that my words to her fell on deaf ears.

I’ve met these children in Immigration detention centres and in adult prisons and it has always been obvious me to and similarly so to other advocates, and I can assure you just as obvious to prison officials, prison support officers, prison guards and prison superintendents that these are just children.

One vital source of crucial information to me in trying to help me along in the campaign to have these children released from adult prisons is actually a prison superintendent who I cannot name however this superintendent is disgusted that children are in adult prisons however the superintendent argued his/her limitations in what can be done from within ‘the system’ – as the internal pressures to push to remedy these wrongs have been overwhelmed by the Commonwealth – not even State ministers with the portfolio of Corrective Services believe it is within their jurisdiction or brief to release these children or to even investigate – now of course in the pursuit of doing what is right I do not buy this, the moral compass should come first – however the argument is that these children are Commonwealth prisoners and therefore States have no or little jurisdiction – hogwash.

In order to get some justice we have worked ourselves to the bone in underwriting news media all over the country and sadly it has depended on the through-care journalism of the Australian Broadcasting Commission (ABC), seasoned newspaper journalists and others to keep this phenomenal breach of human rights in the light of day. Finally, we were helped along when after meeting with Senators Lee Rhiannon and Sarah Hanson-Young (in October 2011) we brought them to the fore in finally speaking up not just in public however in Senate Estimates and in the Australian Senate of the children who languish in Australian adult prisons. Myself, Indonesian human rights advocate Eko Waluyo and solicitor Edwina Lloyd coordinated forums in Sydney in October last year to keep on pushing for changes and to continue to highlight the plight of these children who at the time may have reached 100 within Australian custodial systems – and this fact, the statistic, was presented to UNICEF in Geneva at the time. It’s as if we, and others, had to batter the government, by various exposure and shaming, into doing what is right. There is still some way to go.

Officially, with this most recent release of the three children, there are 22 age disputes remaining – they are the ones that have been raised with the Office of the Attorney-General predominately through individual advocates and majorly by the Human Rights Unit of the Australian Human Rights Commission (AHRC). However, I will argue that there are children in Australian adult prisons who are unaware of their rights in being able to make a submission – what needs to happen is a review of all Indonesian prisoners – convicted and those on remand – with for instance the AHRC and the Indonesian Consular officials involved.

If the rule of law is to be circumvented as has been with the government’s persistent contravention of their own policy in failing to return children home to Indonesia, or those whose “age is in dispute”, and as obviously continues to be the case in Australia – with the horrific conundrum of people who are minors being presented to Australian Courts as ‘age unknown’ – then the Commonwealth as long as it wants to persist with making villains out of people who assist in the safe passage of Asylum Seekers, must implement appropriate and adequate age-determination protocols.

When Ali Jasmin was interviewed by the Department of Immigration the interviewing officer thought that he “was about 14”. So what happened from there?

For both Ali Jasmin and Hadi Kurniawan Indonesian birth certificates and Indonesian National Police Clearances were produced proving they were minors. So what happened from there? Incredibly, in many instances, not just with Ali and Hadi, the documents were not tabled to the Courts and others argued that the Indonesian criteria required to assemble these documents is not equivalent to Australian criteria and therefore they would not be admissible as evidence to Australian magistrates – their proof of age was not proof of age! – their birth certificates! This is cultural imperialism and utter discrimination for Australia to be telling Indonesia how to go about assembling criteria to prove dates of birth – however within this vacuum of inhumanity have been caught these children.

As a PhD researcher in Australian deaths in custody, and Australia with one of the world’s worst prison deaths and prison suicide records, I have often been haunted by the prospect of a child dying in an Australian custodial jurisdiction.

Australian Federal Police (AFP) were a source of information to me, and they said they did not want to be leading children into adult jurisdictions and did seem more concerned than all the other folk of various institutions of this nation which I went to – however the AFP did not publicly stand up to the Commonwealth government albeit they were the first to speak to the truth about the extensiveness of the numbers of those incarcerated – in May of last year they affirmed more than 60 “age-disputes”. An officer from within the AFP said to me their hands were tied by the existing protocols and they had to accept the results from the bone-density tests which a radiologist interpreted. Hence boys like Ali Jasmin and Hadi Kurniawan were remanded to HAKEA prison – Hadi is now convicted, as was Ali, and is serving his sentence at Albany Regional Prison – as was Ali – and both were located for work shifts in the kitchens and laundries alongside alleged sex offenders and paedophiles. After contacting the prison superintendents and with thanks to various news media in highlighting the predicament and potential risks, the children were removed to protected units and were often escorted by prison support officers.

Ali and Hadi upon conviction were removed from Perth’s HAKEA prison, which is predominately a remand facility – 85% remand – however to Albany Regional Prison, more than 400km south of Perth and away from the few support folk they had, like myself and the Indonesian Consulate – they needed their support folk, so I believe.

Ali Jasmin said that he is no longer scared, “They have done everything to me now – there is nothing left to be scared of.” Hadi Kurniawan said to me, “I am scared of being in jail but I have got used to it, and I have no choice but to just try my best and wait, and to make friends in here, and to do courses, to learn English better.”

When Ali arrived to our shores he was 13 years old, when he was arrested he was 13 years old. When he was convicted he was 14 years of age and he is now being released just shy of 16 years of age. When Hadi reached Australian shores he was shy of 15 years of age. When he was remanded he was 15 years old, and when he was finally convicted he was sixteen years old. He has just turned 17 while in Albany Regional Prison.

Both Ali and Hadi belong to Indonesia’s abject and acute poverty, and at times found themselves within destitute lives and in various toils most Australians cannot imagine – they committed no crimes except only when they were told so by Australian authorities. However whatever the Australian authorities choose to consider as their legal view of people like Ali and Hadi in assisting Asylum Seekers with safe passage they had no right to dismiss the documents produced on behalf of Ali and Hadi in relation to date of birth. The Department of Immigration Detention, the Australian Federal Police, the Commonwealth Department of Prosecutions and the Office of the Attorney-General are guilty of not only cultural imperialism and racism however they are evidently guilty of gross misconduct, breaches of law in refusing to accept these documents and arguing merely “that we do not believe the Indonesian authorities.”

The office of the Commonwealth Director of Public Prosecutions wrote to Ali Jasmin’s lawyer, “In respect of the birth certificate we have received from DIAC, which purports to relate to your client, whilst it is admitted that the birth certificate was provided by the Indonesian Consulate, it is denied that the document was created prior to the offence being committed. The prosecution also disputes that the birth certificate is admissible in its present form without calling proper… evidence establishing what is in the circumstances as to how it came into being. I request that you please advise whether you will be adducing any evidence at the age-determination hearing other than the birth certificate at the age-determination hearing.”

Once again what happened to the Commonwealth’s policy to send folk home whose ages were in dispute? – in erring on the side of caution so as not to risk incarcerating children in adult jurisdictions?

Three minors are being released after a review by the Office of the Federal Attorney-General, however there are 22 other cases before the Office, and Nicola Roxon has restricted her public comments in terms of the reasons for the release of the three children. “Further information has raised sufficient doubt that these three individuals may have been minors at the time of the offence, which warrants granting them early release on licence,” said Mrs Roxon.

“This is not a pardon. These three individuals crewed people-smuggling vessels that came to Australia, all three pleaded guilty to that, and they were convicted of that offence.”

My witness to how cases have been pushed through the Courts and how these children were sold-out is very different to what Mrs Roxon is claiming to be the case here.

“This is a decision to give these three individuals the benefit of the doubt about their age when intercepted, based on further information now available,” said Mrs Roxon.

Not only were they children at the time they still remain children even after the three year non-parole period.

The parents and siblings of these children wait for them in their impoverished Indonesian villages. The parents and siblings of at least a score of children, and possibly two score, also wait in their impoverished Indonesian villages for their release – hopefully it will not take months and years.

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