On Friday, the court ruled that the X-ray method used by authorities to determine a person's age, was unreliable and flawed.
Recently, a 14-year-old boy, held nearly two years in an adult maximum security prison in Sydney, was cleared of all charges of people smuggling and freed to return to Indonesia.
Australian authorities have now been urged to do more to locate the suspects' families to determine their age, and not to use the now-discredited X-ray method.
Presenter: Sen Lam
Speaker: Edwina Lloyd, lawyer from Blair Criminal Lawyers
LLOYD: It's very significant, it's the first judgement that we've heard come down from a court of that level where a court has decided that the X-ray technique is unreliable and this puts pressure on the government to start looking at removing this procedure from the regulations. It's been discredited worldwide and I think it's wonderful news that finally a court has seen its unreliability as well.
LAM: Do you think this decision might be taken up by courts in all states and territories as well, do you think they might now follow the WA ruling?
LLOYD: I would hope that this decision is persuasive on other courts and they do follow this ruling most definitely. There's a lot of light being shed on this discredited X-ray technique through the media and now in courts and I hope that the Commonwealth can sit up and listen and do something about it.
LAM: Well, Indonesian authorities, certainly Indonesian diplomats are claiming that there are more than 40 minors in Australian adult jails. Do you think the Federal Government should come up with some kind of perhaps an across the board legal protocol for dealing with minors?
LLOYD: Absolutely. At the moment, they're doing nothing, They're relying on an X-ray technique to determine people's ages and this is the only prescribed procedure in the crimes regulations and this puts courts in a difficult situation, when these age determination hearings are coming up before the courts. They are relying on the legal constraints that they're under which is that they are relying on this prescribed procedure in the crimes regulations, the only procedure known is the X-ray technique and it needs to be removed and the government needs to be amending this legislation and putting in regulations with protocols for age determination hearings that are reliable and before they even look at the regulations, they should be picking up the phone and calling the families of these young Indonesian clients, that's not even getting done.
LAM: When you speak of methods that are more reliable, is that one of them, making phone calls?
LLOYD: Absolutely, that should be the first thing that the AFP should be doing. They should be contacting the family, notifying them that their sons and brothers have been arrested and then they should be getting a detailed history from the clients and following that up with questions to the family to try and find evidence of their age, instead of relying on this discredited X-ray technique. Other things can happen. I mean these kids are from Indonesia come from poor impoverished villages. They don't have records of births like we do, but certainly investigations can occur, an inquiry into the children's background ascertaining dates of schooling and any other significant events in their life that could help to mark their age.
LAM: How easily can this be done though, because some people might argue that it's not feasible to try and track down the teenagers' families in Indonesia, many of whom might be living in the countryside, inaccessible areas. Are you suggesting that immigration officials fly over there to do some detective work?
LLOYD: Absolutely. I just got back from Indonesia. This is what it came to for me after 20 months of my client being in custody and no one believing his admissions of his age at all. I actually had to get on a plane myself. If the government want to look being economically efficient, it's much more economically efficient to send some immigration officials overseas to these remote parts of Indonesia to find evidence of the age from these families, because we're saving a lot of money. If they are found to be under 18, then we're avoiding a trial, we're avoiding the cost associated with the incarceration of these kids, which is a mandatory minimum term of three years.
LAM: And is that how you succeeded in getting your client freed?
LLOYD: The Commonwealth DPP did not, they don't ever give reasons why they're withdrawing proceedings, but it was a combination of documents that we handed to them. I gave them affidavit evidence from my trip to Indonesia to visit his family, where his (word indistinct) had written down evidence of his age. We also tendered a psychological report that highlighted that my client had some moderate intellectual disabilities and we also highlighted that our client was not an appropriate vehicle for general deterrence which is the policy that drives this legislation.