Sending a 13-year-old Indonesian child to an Australian adult prison

Nov 20, 2022
Youth in jail. Image: iStock

Sentencing 13 year old children to adult jail is injustice of the highest order. On some lists Australians are world leaders in shame. Like locking up and brutalising 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 traumatised,’ 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 recognise – 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?

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