If an intellectually-disabled Australian boy was detained in an Indonesian prison without charge for two years before being quietly released and deported, Australians would be fuming. They'd be as upset as they are over the boy in a Bali prison on drugs possession charges.
Yet this happened recently to an Indonesian boy who spent two years inside Sydney's Silverwater prison on people smuggling charges. The 15-year-old has been sent back to Pantar island in Timor. The Australian government hoped you wouldn't notice that it is targeting children and not the organisers of people smuggling syndicates.
This orphan was not the first Indonesian child detained in an Australian adult prison, and he won't be the last. Lawyers say there are between 40 and 50 Indonesian minors in custody in Australia, some without charge, accused of people smuggling.
Australian authorities continue to detain them while using outdated and internationally-discredited wrist x-ray techniques to determine their ages. Indonesian consulate officials told me 136 minors have arrived in Australia as boat crew since 2008; 33 have had their cases dropped by prosecutors or were found to be minors, a further 26 are in remand while their ages are checked.
One barrister, Mark Plunkett, says his client, aged 15, was sexually abused in the Arthur Gorrie adult prison in Brisbane. The boy has since returned to Indonesia, but has been clearly damaged by his experience. (Mr Plunkett also acted for three Indonesian boys who were returned home from Brisbane after their cases were featured in The Age in June this year.)
Late last week, a Western Australia judge ruled an Indonesian boy accused of people smuggling was a minor. The 14-year-old spent nearly two years in Perth's Hakea prison because Australian authorities said the wrist x-rays put his age at 19. He remains in an adult prison. Australia's Home Affairs Minister, Brendan O'Connor, says the government has no plans to drop the wrist x-ray techniques.
International law is clear on where Australia's obligations lie: no child should be detained in an adult prison. The Gillard government's stance contravenes what Australia promises to do under the Convention the Rights of the Child, as well as domestic criminal laws. Children's rights are universal and cannot be negated merely because the Australian government wants to attack people smugglers.
I'm not in the business of defending people smugglers, I am however in the business of standing up for the rights of children - whatever country they are born in - and the fact is these children are not the people smugglers, they are as dispensable to the organisers as the leaky boats they sail to our shores.
Last Friday, a Senate inquiry into the government's Deterring People Smuggling Bill heard from legal experts that there are many problems with the proposed retrospective criminal law.
The bill misses its intended target, because the people smuggling leaders are not caught and prosecuted, only the small fry are.
The public defender acting for more than 50 accused people smugglers in Victoria - including the Court of Appeal test case the government is trying to scuttle with its bill - told the committee that the Australian community would be aghast if they knew how Indonesian men, some of them just boys, get duped into becoming boat crew on asylum seeker vessels.
Saul Holt from Victoria Legal Aid said uneducated and poor fishermen are offered American dollars to join what they believe are fishing or cargo trips. They have no idea of the destinations, no compasses, and often are surprised to find themselves swapped onto the leaky boats out at sea while the organisers flee to Indonesia. The experts told the committee that the people smuggling charges under the Bill, with mandatory sentences, are not a deterrent and breach the rule of law with their retrospectivity back to 1999.
The money of Australian taxpayers is being wasted. Why should they continue paying for the incarceration and prosecution of Indonesian children? That money would be saved if children were treated as children and not imprisoned with adults. The onus ought to be on Australian police and prosecutors to prove the accused are adults, not for the defendants' legal teams to fly to Indonesia to interview their families and get birth certificates because the Australian authorities don't believe their claims.
If Australia had a Commonwealth Commissioner for children and young people, they could act as the legal guardian for these Indonesian children. I have a bill before the Parliament to create this post, but it has yet to be supported by the major parties. Until then, the government should urgently start an independent inquiry into why children are continuing to be detained. It must end this international shame.
First published in The National Times on Tuesday, 15 November 2011.