Antje Mißbach and Wayne Palmer
Ali Jasmin was only 13 when Australian authorities arrested him for transporting asylum seekers from Indonesia to Australia in December 2009. Rather than detaining him in a facility for juvenile perpetrators, Ali Jasmin was put in an adult facility, which is a clear violation of Australian and international law. He was not the only one. A 2012 inquiry by the Australian Human Rights Commission showed that Australian authorities had unlawfully detained and punished hundreds of Indonesian youth.
Between late 2008 and 2013, when asylum seekers were still coming to Australia by boat, the organisers of those passages often hired adolescent boys as young as 13 years old from poor, coastal areas of eastern Indonesia as crew and fall guys for captains. Not only was their labour cheap, they were also viewed as more compliant and greater risk takers than adults. Often the youth were not aware that the work was illegal, thinking that they were hired as deckhands, and not really knowing where the journey would take them or how long they would be gone. Many of the boys accepted the job offers out of economic desperation. Lacking skills and qualifications, they struggled to find decent work like many other Indonesian youth.
Controversy about the wrongful treatment of Indonesian minors first erupted in 2010, when Australian whistle-blowers and human rights campaigners revealed that Australian authorities had ignored the children’s claims about their real ages, and instead relied on wrist-bone x-rays to determine their ages. At the end of 2012, in an official response to a senate inquiry into the practice, the government reported that it had removed wrist x-rays from the list of prescribed methods to determine chronological age for the purpose of criminal investigations. Incorrectly, authorities had claimed that the scans showed with certainty that the teenagers were adults, neglecting the fact that poverty and malnutrition affects skeletal maturity and that bone scan analyses can be subjective as highlighted in an Australian Human Rights Commission report. As far back as 2001, the police had already acknowledged the test’s limitation, proposing to treat all persons whose test results were ambivalent as minors. However, such protections were not put in place for those whose scan alleged they were aged 18 years or older, even if they disputed the results.
In mid-2011, for the majority of cases in which age had been disputed, prisoners were eventually released and deported to Indonesia because they were quite possibly minors. Australian authorities reported 197 deportations, but according to the Indonesian government’s data, Australian authorities had done so for as many as 316 children and age-dispute cases from late 2008 until 2013. It is hard to rely on these numbers though because Australian authorities are not transparent about their activities, and their counterparts in Indonesia do not seem to know much or care. At any rate, the Australian government had mishandled a significant number of the age-dispute cases. The disputees were potentially children at the time, meaning their treatment contravened the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights, which guarantee that no one, and especially no child, ‘shall be deprived of his or her liberty unlawfully or arbitrarily’. Unlawful treatment of juveniles also includes using the same legal procedures and process as for handling adults.
Lawful treatment for handling juveniles means that anyone who was not clearly an adult should have been given the benefit of the doubt. Instead, Australian authorities relied upon the wrist-bone x-ray to determine the boys’ ages rather than take into consideration other evidence, such as Indonesian birth certificates. In another case, they informed a boy – Muhammad Rasid – who claimed that he was 15 years old at the time of arrest, that according to the x-ray he was in fact 21. He objected, but the authorites said ‘You’re lying, you’re making things up’. No one was listening, and so Muhammad Rasid remained for approximately one year in a facility for adults. Similar to many other cases, Muhammmad Rasid received no compensation from the Australian government for its wrongdoing.
Where was Indonesia?
The Indonesian Government’s consular assistance for the juveniles also left much to be desired. The citizen protection service could have provided legal support. Indonesia’s consular officials were aware of the age-dispute cases. According to Endang Dwi Syarief Syamsuri, who was consul-general in Perth at the time (2010-2014), they let Australian authorities handle the issue instead of rescuing the minors from prison. Rather, he made sure they were given music cassettes and compact discs. On Idul Adha – the second most significant religious holiday of the Muslim calendar – his staff visited the minors and gifted them home-made vegetable stew from Indonesia. Back in Indonesia, the Ministry of Foreign Affairs declined multiple opportunities to become involved, preferring not to make the detention of Indonesian children in Australian adult facilities another major bilateral issue.
This lack of support, and eagerness to turn a blind eye to the unlawful treatment of citizens points to longstanding issues with the Indonesian Government’s efforts to protect the rights of its citizens overseas. Since the authoritarian New Order regime formally ended in 1998, the Ministry of Foreign Affairs has professionalised and sees a greater role for itself in assisting and supporiting citizens through its diplomatic missions. But it is only in the last 10 years that Indonesia has aspired to treat equally all Indonesians. For example, the embassies have been instructed not to treat differently low-wage migrant workers and migrants from more affluent social backgrounds in need of assistance. The new policy may have removed discrimination against migrant workers, but the failure to do more for the Indonesian juveniles in Australia shows that the Ministry of Foreign Affairs still discriminates against underpriviledged minors.
In Indonesia, many other actors refused to make the youth’s cause a matter of importance. The general perception was that the minors were guilty of people smuggling, ignoring the fact that deception or force was often used to recruit them into the smuggling operations. As late as 2013, following the extensive report by the Australian Human Rights Commission on the matter, the Indonesian Commission for the Protection of Children claimed that it was concerned and generally supportive of efforts to protect the children. Privately, they admitted raising the issue with Indonesia’s Ministry of Foreign Affairs, but were told that the timing was not on the minors’ side because the government was pre-occupied with the Bali Nine affair. As a result, there was no real effort to seek compensation for the children’s unlawful treatment by governments on either side.
Advance of private lawyers
Lisa Hiariej, an Indonesian lawyer who lives in Australia, was alerted to Muhammad Rasid’s situation by another Indonesian client she was representing, so she went to see the boy in Silverwater prison. She was disturbed to find that Muhammad Rasid and other children from Indonesia had been detained in an adult prison. After Australian and Indonesian government authorities failed to provide answers or compensate for the injustice, Lisa decided to take a short-cut and bring the case to Indonesia in November 2016 to sue the Australian government on behalf of 115 boys for A$103 million. The court of first instance dismissed the lawsuit in March 2018, arguing that ‘state immunity’ – the legal principle that foreign states cannot be sued in another state’s courts – protects the Australian government in the Indonesian court system. Lisa has appealed the verdict, hoping that the higher courts will allow her clients to sue the Australian government in Indonesia.
Lisa is not the only one representing the boys’ case. An Australia-based law firm, Ken Cush & Associates has taken up the case with the Australian government in Australia. The law firm has filed a complaint with the Australian Human Rights Commission as part of an attempt to get the Australian government to pay compensation to 55 boys. They have not ruled out suing the government in Australian courts. Many of the boys were – or continue to be – Lisa’s clients. She feels that the Australian lawfirm ‘stole’ her clients, and claims to have spent $100,000 of her own money on the case.
The story of the lawyers’ competition for the exclusive right to represent the boys has a longer history. When Lisa brought the case to Indonesia in November 2016, Ken Cush & Associates had already been preparing for their case to quash the wrongful conviction of Ali Jasmin, who had been been sentenced as an adult to five years in an Australian adult prison for people smuggling. Obtained later, Indonesian documents showed Ali Jasmin was only 13 years old. Successfully, the law firm convinced a court of appeal in the Australian state of Western Australia to overturn the conviction in July 2017. Many observers saw this achievement as paving the way for Ali Jasmin and other Indonesian underage smugglers to seek compensation for wrongful imprisonment and related maltreatment.
The Australian law firm certainly has more resources at its disposal to claim compensation for the boys, but the fact that they and other private lawyers like Lisa cannot work together may ultimately undermine the objective as far as the boys and observers are concerned: compensation. The longer the lawyers fight about the exclusive right for representation, the more time is lost while the window of opportunity to sue for compensation closes.
Best interests of the child?
Muhammad Rasid, like many other Indonesian children, has been failed time and time again. These boys’ ages, lack of education, and poverty were exploited to help bring asylum seekers from Indonesia into Australia. Instead of treating them like potential victims of trafficking based on how they were recruited for the smuggling operations, Australian authorities treated them as perpetrators by holding them fully responsible for the asylum seeker passages. Meanwhile, the Indonesian Embassy and its consulates, whose task is to protect its citizens overseas, have turned a blind eye, allowing the boys to be punished like adult perpetrators.
Making matters worse, the Australian government continues to drag its heels over how and when compensation is paid. The fact that Australia owes the boys compensation is hardly questionable, and the longer the government refuses to pay, the more the publicity will damage Australia’s international reputation for protecting human rights. Appropriate compensation will not only redress past wrongs, but, more importantly, it will help the victims, who are now adults, get on with rebuilding their lives.
Antje Mißbach (firstname.lastname@example.org) is a lecturer in the School of Social Sciences at Monash University.
Wayne Palmer (email@example.com) is a lecturer in the Department of International Relations at Bina Nusantara University.