Children's rights: Submission to AHRC inquiry into age assessment in people smuggling cases

The HRLC has made a submission (with annexure) to the Australian Human Rights’ Commission’s Inquiry into the treatment of individuals suspected of people smuggling offences who say they are children. The submission focuses on the effect of Criminal Justice Stay Certificates (CJSCs), which are being used to keep child suspects in detention for long periods of time, without access to lawyers or effective judicial review.

“We know that a large number of children, some as young as 12, have been detained in connection with CJSCs for extraordinarily long periods of time.  These kids are not provided with legal advice or any real opportunity for judicial review of their situation.  We need checks and balances in the system to protect these children,” says Phil Lynch, Executive Director of the HRLC.

The submission makes the following key recommendations to better protect suspects’ human rights.

  1. A person should only be detained pursuant to a CJSC where such detention is reasonable, necessary and proportionate in all the circumstances.
  2. Commonwealth authorities must be required to make a decision whether to lay criminal charge and, if charges are to be laid, do so within 14 days after a CJSC has been issued or such longer period as authorised by a court. Once a reasonable time has elapsed, a Court must be capable of revoking, or declining to extend, a CJSC.
  3. The Commonwealth must provide free Legal Aid to persons suspected of people smuggling offences who are being held in immigration detention pursuant to CJSCs.

The submission also repeats the HRLC’s earlier calls to ensure that Commonwealth laws and practices apply the ‘benefit of the doubt’ principle, meaning that suspects who claim to be children must be treated as children, unless proven otherwise.

The HRLC is grateful for the assistance of the Mallesons Stephen Jaques’ Human Rights Law Group in the preparation of this submission.