Of course, if you’re going to impose ludicrously long jail-terms on poor Indonesians who crew refugee boats, it’s important to make sure you’re only being obscenely harsh to adults, so far as anyone can prove:
TWO of Australia’s child commissioners have backed criticism of the Gillard government’s use of wrist X-rays to determine the ages of Indonesian crew members of asylum seeker boats. Crew members face five years’ mandatory jail sentences under harsh people smuggling laws…
Sir Al, a world expert on determining the ages of children, warned that the current process of assessing age in Australia was a matter of grave concern.
Mr Geary said X-rays were a ”bizarre” way to find out the ages of vulnerable children.
Mr Geary seems to care more about the Convention on the Rights of the Child than on THE MESSAGE that we must send to poor children overseas. That message being, it’s worse to help a refugee escape danger than to commit a violent or dishonest crime in Australia as an actual adult.
And, hey, if that means some kids are convicted of adult offences and serve time alongside actual violent adults, then serves them right for being born into poverty where they don’t have proper birth records.
“Bizarre”, indeed! Hah. I suppose Mr Geary would rather we cut their limbs off and counted the rings. (Foreign children are constructed like trees, right?)
Moved On 
Perhaps they should try carbon dating them, that way they’d always get an answer they want within the error margins. [snort]
So how are we supposed to distinguish between children and adults when sentencing for this crime?
We should err on the side of caution. It’s far preferable that some adults be treated as children than that any children be treated as adults.
And we shouldn’t have such extreme penalties for this specific offence. Have tough penalties for those who own and operate dangerous boats, sure (although it’d be difficult to catch them), but don’t take it out on the crew.
I’d be hoping the courts would find that this sort of evidence is simply inadequate, regardless of how much the government wants to rely on it.
It’s a pretty crude technique.
I think a reasonable position might be – if you consider requesting an x-ray for age determination, then there is enough doubt over the adult status of the person in question that, in absence of evidence to the contrary, you should treat them as a minor.
We have a presumption of innocence as a standard component of law and no one has an issue with that (ok, except maybe ACA). A presumption of that a person who says they are a minor, and there is reason to believe they are a minor (eg they don’t look over 25) is a minor with the burden on the State to prove they are an adult (ie guilty) is completely consistent with this concept.
But isn’t that what the government is doing? Using the X-Ray technique in an attempt to disclose its burden of proof?
What type of age-testing approach would be acceptable to commenters here?
One that is accurate – beyond all reasonable doubt, since we’re talking about criminal convictions here.
Since there isn’t such a one that I know of, the government (and if not the government, the courts) have to err on the side of caution. If they can’t prove they’re adults, then treat them as kids. Better that adults be punished as kids than kids punished as adults.
So, if no method exists whereby a human being can be “aged” with 100% certainty then our courts should simply sentence anyone who claims to be a child, as a child?
That seems like a ridiculous application of justice to me.
Mondo, we are only talking about it in situations where there is a dispute. The onus should be on Government to discharge their burden of proof beyond reasonable doubt; not 100%. In a situation where someone is clearly under 20, and this x-ray method is all you have, and them being a teenager would be well within the error margins of this method, then I would conclude that there is a reasonable doubt. A reasonable person with this information would conclude that you cannot say with any certainty that this is an adult. However, if the person was clearly above 25, then the issue would not even require the x-rays. There are not that many cases that this would be in dispute.
To discharge a burden of proof is just that, it doesn’t mean give the best evidence you have and if that is shit that will do. Can you imagine if we applied that standard in other criminal charges? Innocent until proven guilty or you know, close enough because the shit evidence we have doesn’t really identify you but it shows a silohette that is sorta similar to you – bam you did it.
I believe that in this case, there are records indicating these people are probably minors, which are ignored in favour of the x-ray test on the basis it is more reliable, when in fact scientifically speaking, its not.
A benefit of the doubt test is surely not unreasonable, and expert testimony on a combination of physical evidence (including bone structure), documents where available, etc, could be weighed up by a court where a defendants age is in dispute.
The onus should be on Government to discharge their burden of proof beyond reasonable doubt; not 100%.
That’s a fair point narc: “beyond reasonable doubt” does not = 100% certainty and I was incorrect to argue above as though it does.
Fundamentally I agree with you (and jeremy and Jordan), i.e. that where there is reasonable doubt as to the age of a child then the benefit of the doubt should go to the defendant. However the article that Lefty has linked to provides no useful information as to what methodology is out there and its efficacy.
All we get is selected outrage from various refugee advocates and the opinion of “Sir Al”, who is apparently a world expert on the subject but who provides no information about better ways to judge the age of a child. No, instead he chooses to limit his contribution to a mere assertion that the current method is “bizarre” and a “violation of their rights”.
Our courts are perfectly capable of deciding which of the “age” evidence presented by each side in a case is the most reliable – this story thus appears to be a total non-issue. The journo is simply reporting the Defence’s argument as though it is indicative.
My understanding of the ‘outrage’ is the over-reliance of it without access to due process to enable proper appeal processes – as if, it this x-ray is provided, then the case is closed. I may not be spot on on that, I haven’t kept up with it that well.