An impoverished Indonesian mother, in front of an Australian journalist, lies on a cement floor clutching a photograph of her 16-year-old son who is now in an Australian adult prison and whom she hasn't seen since he was 14.
Abject and acute poverty ravages Indonesia, a country where only 10% of the population has a refrigerator, where most people do not have electricity let alone a television, where many people live half lives working in sulphur mines and where most folk will never rise out of the shanty towns and villages they are born to die in.
Human rights abuses and injustices should be criticised, at all times, however it is difficult for Australia to criticise foreign justice systems and practices when Australia is no better.
Australia has incarcerated at least 60 Indonesian youths, and possibly over 100, in Australian adult prisons.
The state of Western Australia bears the brunt with 29 affirmed age disputes and possibly many more. The youths we are describing are some of our world's most impoverished children who for as little as $6.80 provided assistance to asylum seekers.
These children assisted as cooks and deckhands in the safe passage of asylum seekers to Australian shores.
Australia's prescribed policy is to return those cooks and deckhands to Indonesia who are 18 years of age and under, and to charge as perceived people smugglers under sections 232 and 233 of the migration act those who are 19 years and above.
One can only be remanded to an Australian adult prison if they are at least 19 years of age. Unfortunately for these cooks and deckhands, the Australian Commonwealth of Public Prosecutors has not heeded what 27 legal experts put to a Senate Estimates Inquiry some years back — that was those who assist as cooks and deckhands cannot be charged under these sections and that indeed they are not people smugglers.
However Prime Minister Julia Gillard, with a complete disregard of the law and international covenants, has taken the lead from former Prime Minister John Howard in fabricating a “people smuggler model” that victimises the world's most impoverished folk who from a humanitarian perspective are merely cooks and deckhands assisting in the passage of asylum seekers — in other words our governments will unlawfully go after anyone.
The youngest son, and seventh child, of this anguished mother is Hadi Kurniawan, who was born on April 5, 1995, and who has been remanded to the maximum correctional facility of HAKEA in WA since February.
I met Hadi at the Perth Airport Detention Centre in January. With a fellow refugee advocate, Victoria Martin-Iverson, I had been visiting people detained at this facility when we came across Hadi, sitting nervously on a small lounge, alone, urgently puffing on a cigarette.
To both of us he looked awfully young. We spoke to him for about five minutes.
I have been visiting prisons for some six years, usually at the invitation of a prison official to talk to our incarcerated souls about educational pathways.
Early last year, while on such a visit within the prison's educational facility, I came across an English language class of thereabouts a score of young Indonesians.
I walked in and spoke with them. I learned that they were fishermen who had been found guilty of “people smuggling”. I was appalled to learn that they had been lumped with mandatory five-year sentences, to be served at Albany prison, to which they would soon be transferred.
All of them had only cooked or served as deckhands. They did not know that in assisting in the safe passage of our asylum seekers that they were doing something deemed wrong by then Prime Minister Rudd, and similarly by incumbent Prime Minister Gillard and Coalition leader Tony Abbott and, unfortunately, by a majority of Australians.
I thought to myself that some of them looked 14 and 15 years of age. However at that time I had an investiture of faith and goodwill in the Australian justice system in that they would have ascertained their date of birth.
I was wrong, and I now look back to them and wonder how many of them, like Hadi, are children.
During one of my February visits to HAKEA I learned that Hadi had been arrested by the Australian Federal Police and was at HAKEA.
I could not fathom how he could be any older than 16. I arranged to visit him on March 17.
Accompanying me on that visit was Nikola Leka, of the Refugee Action Coalition Newcastle. I had made a morning visit to a Sinhalese person on remand at HAKEA, also on perceived people smuggling charges, and his story is another tragedy in itself.
Nikola and I were to visit Hadi straight after. For the first and only time in six years of visiting prisoners, officially and socially, I was pulled aside by HAKEA security and questioned for ten minutes as to the purpose of our visit with Hadi.
I was stunned. However, I answered all questions honestly. The security official told me that the instruction had come “from above” and not from HAKEA superintendents.
Later I would learn that these instructions came from the Department of Correctional Services (DCS) security and from the Justice Intelligence Unit of the Ministry of Justice. We were allowed to proceed with the visit.
During the hour-long visit Hadi told me that he was 16 and that he had been in Australia since April 2010 when the boat of 30 Iraqi and Hazara Asylum Seekers waited at Ashmore Reef. He was barely 15 at the time.
The Royal Australian Navy took them to Christmas Island for a week before he was transferred to Darwin Immigration Centre, where he contracted tuberculosis, but was detained for ten months till being flown to Perth, where I met him at the Airport Detention Centre, while he was being treated as an outpatient at Royal Perth Hospital.
The Australian Federal Police, guided by the Howard/Gillard “people-smugglers model” wanted to charge him.
They did not accept his date of birth, they did not notify Indonesian consular officials of his presence nor did they seek their assistance in determining Hadi's age, and they did not contact counterparts in Indonesia to affirm his age.
Rather, they relied on a discredited 80-year-old medical procedure, a wrist-bone age scan, and a radiologist's interpretation, to insist on an age.
This is part of the reason why there are possibly 100 of the world's most impoverished children in Australian adult prisons.
Medical experts and other authorities the world over have slammed these tests. They are not fail-safe and, rather, they are dodgy. They can be erroneous by five years and more!
The criteria for determining age through these tests were originally aligned to well nourished American and Australian people and not under nourished, and weathered Indonesian folk.
The age test alleged that Hadi was born in 1991. Hadi has never shifted from the claim that he was born in 1995. After he persistently affirmed to me that he was born in 1995, and I believed him wholeheartedly, even if I did not unequivocally know, I had a duty to disclose this to HAKEA authorities.
The journey since has been one where we have had to grapple with a vacuum of inhumanity.
Unbelievably, HAKEA Security blocked my visits, official and unofficial and not just to Hadi, but to all prisoners.
HAKEA Superintendents were horrified and reinstated my visiting rights, and I managed another visit with Hadi. However, HAKEA Security blocked them again and instructed the Superintendents not to remove the “block”.
I went to every relevant authority while DCS Security claimed I was inadvertently flagged as part of an introduction of new protocols, which have never been presented to me.
They promised they would expedite the scrutiny, however two weeks passed. In my belief, it was only when Jane Hammond, a journalist published an April 6 article in The West Australian about Hadi's plight that my visiting rights were reinstated.
My visits were reinstated the same day! You don't get much out of parliamentarians, with their minimalist fodder, however it says it all when Federal Senator Louise Pratt wrote to me that she was appalled in that my visits were blocked and that she believed “it is political”.
I could not leave this boy in an adult prison, a maximum-security facility, and to a pending five-year sentence.
Hadi told me he was “scared” and told me he feared “authority” and did not want to draw “attention” to himself that would see him removed to another unit, away from his fellow Indonesians, or to another prison.
He seemed to fear he would be removed from Unit 1 to either a Unit 4 or Unit 6.
This theme of an excessive fear of authority has usurped the rights of Indonesians and Singhalese who have been charged as perceived people smugglers, and it does not matter how many of us explain that they should not fear Australian authorities to the extent that they may fear Indonesian or Sri Lankan authorities.
Hadi told me he wanted to “go to home”. In HAKEA, Hadi was assigned to work in the laundry where traditionally those charged with sex offences and paedophilia work, however he has since been relocated to kitchen work where he earns $30 a week and up to $48.
I contacted the Indonesian Embassy in Canberra and they were quite concerned.
Initially, I worked with the Perth Indonesian Consulate, through the Vice Consul and they visited Hadi and they believed that he was born in 1995.
I had the phone number of his older brother Heriyandi in Batam, Indonesia, and I had called him and Heriyandi, in his limited English, affirmed that Hadi was born in 1995.
The Indonesian Consulate called the family and similarly gained this affirmation. In June, a barrister from Sydney, with whom I was liaising would visit Hadi and similarly provide a transcript from his visit affirming his age and of other contact details to family in Indonesia.
I went to every relevant authority, just about every relevant parliamentarian in this state and in Australia and none would adequately consider, let alone represent, Hadi’s interests.
No Australian parliamentarian or political leader would demonstrate the warranted moral leadership. I am appalled not only in the ALP and the Coalition and the Independents, however, but also in the Greens.
I asked Hadi’s Legal Aid lawyer to contact his family in Indonesia, however he advised me that he was following Hadi’s instructions and restricted comment to the argument of “Privilege”.
I spoke to the Commonwealth Prosecutor and described to her that the responsibility belonged to the Commonwealth to ascertain age beyond a reasonable doubt and to ensure they were presenting people before the appropriate jurisdictions. Silence.
Days turned into weeks, weeks into months, and Hadi, and others, continued to languish in adult prisons.
I went to the state and federal governments and they said little and did nothing. I went to WA state Labor parliamentarians and they said to me to go the media.
I went to federal Labor parliamentarians and they told me to go the Greens! I went to the federal Greens and, as noted, they did nothing. With the exception of WA Greens Alison Xamon asking several crafted questions in the state legislative assembly no parliamentarian demonstrated any moral leadership or other political conviction.
None of the three major political parties were prepared to unveil Australia's racist layers and lead from the front. I have never been more disgusted by this exposition of immorality.
How dare not a single Australian Senator, 76 of them, not raise a question about minors in adult prisons in the Senate?
All three major political parties are more concerned about what the majority of the Australian population may perceive and therefore they are more concerned about “votes” than they are in speaking the truth and in demonstrating the type of leadership that in effect would be educative and, in part, change public perceptions.
This is not my experience alone, it is also the experience of barristers such as Mark Plunkett who defended the rights of one of three Indonesian minors incarcerated at Brisbane's Arthur Gorrie Prison.
Mark had to do as I did, he picked up the phone to Indonesia to begin the search for the truth.
Thanks to Mark and his two colleagues the three boys, Ose Lani, Ako Lani and John Ndollu are now free. Queensland's Commonwealth prosecutors, without too much of an explanation, dropped the charges.
This has set a precedent, and it is sad we have to rely on this precedent. I understand that the Commonwealth government wants these cases to quickly disappear so they are not exposed for their outrageous abuse and lies as the Coalition was with the Tampa lies.
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.
At this time there is an Indonesian delegation in Australia meeting with relevant Australian authorities pushing not only for Hadi's release, but also for the immediate release of all those with their age in question and for the implementation of appropriate age determination protocols and the commonsensical courtesy for Indonesian consular officials to be notified of the presence of their nationals on Australian territory.
The Australian Federal Police advised me that no treaty exists between Australia and Indonesia that requires either country to notify the other of the presence of their nationals on each other’s shores.
Such a treaty does exist between Australia and China, however do we require treaties to ensure this courtesy and the protection of a person's rights?
I made certain that Indonesian media became aware of Australia's human rights abuses towards Indonesian children — I contacted the Jakarta Post, Radio Elshinta, and Indonesian human rights advocates, and I was contacted by Eko Waluyo, an Indonesian human rights activist in Sydney who did likewise and more and contacted the Indonesian Foreign Affairs Ministry.
When all appeared an uphill struggle, when every door shut, I had no choice but to risk all my relationships with journalists and editors.
Along came Lindsay Murdoch, of The Age, and he highlighted the efforts of Mark Plunkett and then myself, and if it weren’t for Lindsay we would still be pushing the barrow up a steep hill.
Lindsay contacted Hadi's family through correspondents in Jakarta and for two weeks published article after article syndicated across the country. Subsequently I pushed West Australian media to pick up the baton and lead the way and for a couple of weeks they did.
Thanks to The West Australian's Steve Pennells we were able to go further, and he flew to Indonesia to meet members of the family and secure hard copy evidence of Hadi's age.
Indonesia's population is primarily poor and most of them do not have paperwork or any knowledge of how to access it. Steve met Hadi's brother Heriyandi and Hadi's mother Yusniar and eventually secured a police clearance for Hadi that included Hadi's date of birth.
Steve applied for what is known as the “family card” which further proves Hadi's age and we are waiting.
Most folk in Indonesia do not have birth certificates. For purposes of the population census they are on a register and hence the family card and carte lingue.
I had already known that Hadi had graduated Junior High, the equivalent of our Year 9, in 2009, which would have put him at 14 years of age.
Hadi did not continue on with education, he was too poor and moved to Java to live with a paternal relative while seeking work in construction. Three months later when the relative died Hadi had nowhere to go, and before he knew it he was on a boat as a cook keeping asylum seekers safe from dehydration and starvation during their passage to Australia.
His family did not know he was on a boat to Australia and for more than a year they did not know what had happened to him. They feared the worst.
They first heard from Hadi after he was arrested, charged and sent to HAKEA. Hadi worries about his mother and tries to assure his mum that he is looked after in prison.
Steve Pennells would break a significant whole page story in the West Australian, Monday June 27, with a large photo of Hadi's mother holding her son's photo on page 3, and Hadi on the front page.
On the Friday, concerned for Hadi's state of mind, I risked contacting HAKEA's superintendents, who for whatever reasons I reasonably trusted, and let them know that on Monday Hadi would see his mother's photo in the newspaper and on television and that they should consider a prison support officer or counsellor for Hadi. They did.
As the Australian Prime Minister lacks the morality to en masse free these children — similarly lacked by state and territory premiers and chiefs — it is still up to lawyers to ensure the release of these youths as was the case in Brisbane.
We are waiting for Hadi's lawyer to initiate urgent bail proceedings — I have forwarded him the police clearance and a letter written by Hadi in Indonesian in front of the barrister from Sydney who visited Hadi while in Perth, and which describes Hadi's insistence in that he is 16 and who subsequently describes the fears he has of repercussions.
We expect that if there is an application for bail that the prosecution will do as occurred with the Brisbane three, charges will be dropped. This is the only way.
Recently I managed to meet in person Julia Gillard, and as we shook hands, and as her smile went cold and as she was visually shaken, I reminded her that she is the Prime Minister of a country with 14, 15, 16, 17 year olds in adult prisons and that she needs to remedy this — she hasn't.
Chris Bowen has only recently begun to admit that there are minors in our prisons. He said on June 29: “Yeah, look, the issue of minor crew — this is people who've been crew on boats that have come to Australia in an unauthorised fashion that are minors — is a difficult one.
“The Attorney General and I have been working on it, we've also been talking to the Indonesian government about it. It is obviously important that the law be able to take its place, but there are special circumstances when it comes to minors.
“I'm not going to comment on individual court cases — that would be inappropriate — other than to say the Attorney General and I are very aware and alive to the complexities of the issue and we are continuing to progress how those issues should be dealt with.”
What do you say to that? In Western Australia, I received a response from the state minister for Corrective Services, Terry Redman, who claims that he has to accept the evidence provided by the Australian Federal Police, and that therefore there are no minors in our prisons!
Not Gillard, Bowen or Redman understand that politics is a calling.
Hadi, Ako, Ose and John have become the young faces of Australia's most recent human rights abuse, its abuse of children — however we must remind ourselves there are at least 60 to 70 others and possibly more than 100 we need to shine the light upon and free.
A couple of 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, and currently we have several more cases before the courts, in Sydney, as Bankstown Prison has minors, and in Melbourne, and in Perth a writ, habeas corpus has been lodged in the Supreme Court in the case of Ali Jasmin whose lawyer is requiring the Commonwealth undertake the onus of the burden of proof in determining age beyond a reasonable doubt. This is what all lawyers should have done.
Most of those charged are essentially railroaded by their lawyers and the justice system into prison sentences — they are rarely visited if ever, many see their lawyer for the first time in Court, and interpreters do the bare minimum.
Legal Aid needs to stop representing these victims and admit that they do not have the resources to ensure these people are properly and honestly represented.
Many have contributed to Australia's present abuse of these children — the relevant authorities that could not pick up a phone and call either the Indonesian consulate or families in Indonesia, the lawyers who likewise could not pick up the phone and who under-represented their “clients”, the political parties and their parliamentarians who cowered rather than do their duty, and the Prime Minister and Minister for Immigration who are leaving racist legacies.
UPDATE — The Sinhalese young man referred to in this story, and two other Sinhalese who journeyed 27 days by boat, with 29 Tamil Asylum Seekers, and who spent more than 15 months in HAKEA prison have had all charges of perceived "people smuggling" dropped.
As of July 7 they have been released into community detention (in Perth). One of them had only seen his lawyer once, another was told to plead guilty, one tried to kill himself. They are now reapplying for their refugee status. As of July 9 I can confirm that while Foreign Minister Kevin Rudd is in Jakarta he has had the injustice of Hadi's incarceration, and of all Indonesian children illegally incarcerated by Australia, raised by the Indonesian foreign minister.
It may be that Kevin Rudd will try to save face with the Indonesian foreign minister and that Hadi is released in the coming week.