An Indonesian youth, Hadi Kurniawan, imprisoned on charges of people-smuggling, has drawn attention to the Australian government and legal system’s brazen disregard for human rights. Kurniawan’s case came to light almost by accident. Two refugee rights activists, Gerry Georgatos and Victoria Martin-Iverson, met Kurniawan at the Perth Immigration Detention Centre in January. They had no idea at that time that he would be sent to prison.
Georgatos in his line of work informs prisoners of their options to education. He is a regular visitor to Hakea Correctional Facility in WA. During one of his February visits, he learned that Kurniawan had been arrested by the Australian Federal Police and was being held there. He subsequently arranged a visit to him.
Under the Migration Act, if someone connected with “illegal” immigration is under the age of 19, they are normally returned to their country of origin, which in Kurniawan’s case is Indonesia. Kurniawan told Georgatos that he was 16 and that he had been in Australia since April 2010, when he arrived on a boat with 30 Iraqi and Hazara asylum seekers. The navy took the asylum seekers to Christmas Island. Kurniawan stayed there for a week before he was transferred to Darwin Immigration Centre, where he contracted tuberculosis. He was detained for 10 months until being flown to Perth, where he was being treated as an outpatient at Royal Perth Hospital. It was during this time that Georgatos and Martin-Inverson met Kurniawan.
The AFP have not accepted his date of birth, but have not performed the most basic checks. They did not notify Indonesian consular officials of his presence nor did they seek their assistance in determining Kurniawan’s age. Instead the AFP used a wrist-bone scan to determine his age. This technique, established in Australia during the 1950s, is widely discredited. It involves comparing X-rays with those taken from a sample of largely white middle-class children in the United States in the 1930s. It doesn’t take into account that Indonesian children are often working by the time they are 13 and that their wrists therefore show more wear and tear.
As a result, Kurniawan has been locked up in a maximum security prison. This is not simply a misunderstanding. The Australian government has consciously locked up children as it seeks to scapegoat the most vulnerable. It desperately wants to conjure up an enemy out of the impoverished masses of the developing world to deflect attention from its neoliberal agenda. That’s why former prime minister Kevin Rudd described “people-smugglers” as “the vilest form of human life” and said “they should rot in hell”.
Most people engaged in transferring asylum seekers to Australia are poor Indonesian fishermen who get paid a miserly sum. Serving as deckhands or cooks, they face a mandatory prison sentence of five years if they are caught. Many of them do not know that they are doing anything unlawful.
No doubt aware that Georgatos was seeking Kurniawan’s release, Hakea security blocked his visits, which were not reinstated until the case became public. Georgatos contacted the Indonesian consulate, which confirmed Kurniawan’s age. It called his family, who stated that Kurniawan was born in 1995. Georgatos contacted every parliamentarian – ALP, Coalition, independent and Greens – in WA and Australia that the case would have been relevant to, but none responded. Of 76 senators, not one would raise questions about Indonesian minors in Australian prisons.
Even Kurniawan’s legal aid lawyer was not interested in determining his age, which could have been verified by contacting the Indonesian consulate and his family. The whole legal process has been a shambles and appears manipulated from the start. The government wants convictions to show it is “tough” on people-smugglers, but seeks to rush cases like Kurniawan’s through the courts as quickly as possible, so it is not exposed for locking up children.
Frustrated with the whole spectrum of parliamentary politicians, Georgatos contacted Indonesian media outlets including the Jakarta Post and Radio Elshinta as well as Indonesian human rights advocates. Eko Waluyo, an Indonesian human rights activist in Sydney, made the case known to more of the Indonesian media and also contacted the Indonesian Foreign Affairs Ministry.
Eventually the mainstream media picked up the story, andthe West Australian’s Steve Pennells, recognising its significance, flew to Indonesia to meet members of the family and secure hard evidence of Kurniawan’s age. This was not easy, because most poor people in Indonesia do not have paperwork or any knowledge of how to obtain it. Kurniawan’s family live in extreme poverty, and documents that would have proved his age in Australian courts were either never issued or were destroyed when their riverbed home in Sulawesi was washed away.
According to information supplied by his family, Kurniawan graduated from junior high school, the equivalent of our year 9, in 2009, which would have put him at 14 years of age. Kurniawan moved to Java to live a with a relative while seeking work in construction. Three months later, the relative died. Out of desperation, he took a position as a cook on a boat headed to Australia. His family did not know what had happened to him and feared the worst. They first heard from Kurniawan after he was arrested, charged and sent to Hakea.
Many more cases
Kurniawan’s case is only the tip of the iceberg: there may be 60 Indonesian children locked up in Australian prisons. Neither is this a recent occurrence. Two years ago, a 14-year-old Indonesian boy served 12 months in an Australian adult prison and was released only when the magistrate sighted his certified Indonesian birth certificate. Refugee rights activists are aware of children being held in Bankstown prison as well as prisons in Melbourne.
Three children – 15-year-old Ose Lani and 16-year-olds John Ndollu and Ako Lan – were held in Brisbane’s Arthur Gorrie prison for more than 14 months. Again, the AFP relied on dodgy wrist scans to determine their age and made no attempt to contact their families. These children are from a poor fishing village in West Timor. Albert Lani, the father of Ose Lani, said: “The three boys went fishing one day and never returned … we thought they had been lost at sea.”
They were held in a detention centre in Darwin until January of this year. The boys were tricked into crewing the ships, being offered up to $500 but never receiving such payments. On June 16, they were finally released, pending an age hearing that would take into account more evidence to determine their ages. The charges were then dropped without explanation. This case was an exception because their lawyer did what no other lawyer has done, contacting the families and seeking documentary evidence of their age. Many Indonesian children imprisoned in Australia see their lawyer for the first time in court.
The United Nations child protection agency UNICEF has warned that dental and skeletal tests should not be relied upon to determine the age of children, and recommends that assessments be made by interviewers who know the language and country of origin of a child. The United Nations High Commissioner for Refugees says if the exact age is uncertain, the child should be given the benefit of the doubt.
This whole case shows how politically motivated the actions of the AFP are and how unjust the whole judicial system is.
The government knows what it is doing is morally wrong and unlawful. In internal documents, the Immigration Department has reportedly questioned the use of X-rays, saying that they are “not an accurate determiner of chronological age”. The United Nations Convention on the Rights of the Child – to which Australia is a signatory – declares that children under 18 must be jailed only as a last resort for the shortest possible time, and that all actions of governments must be in the best interests of the child.
According to Gerry Georgatos, “Gillard and Bowen and the whole of the ALP have not only breached Australia’s commitment to the Convention on the Rights of the Child; they have shattered it”.