Australia's shame over its forgotten teenage prisoners

For the past six weeks, Australian diplomats have been working frantically on behalf of a 14-year-old boy arrested in Bali after buying marijuana. The public have followed every twist of the case, including the boy's court appearances – his face concealed behind dark glasses and a balaclava – and rumours that his family has sold his story to a television network.

Considerably less outrage has greeted revelations that possibly dozens of Indonesian teenagers have been held for up to two years in adult prisons around Australia. Their plight has barely grazed the public consciousness, and judging by comments on news websites, some who do know about their situation believe they deserve no sympathy. Their alleged crime is helping asylum-seekers, the vast majority of whom end up being accepted as genuine refugees, to travel by boat to Australia.

Lawyers say the boys, mostly aged 14 to 17, are the unwitting victims of a crackdown on "people smugglers" by a government determined to be seen to be tough on asylum-seekers. Mostly illiterate and from poor fishing villages, they were recruited as crew and had no inkling they were being asked to commit a crime that, under legislation introduced last year, carries a minimum penalty of five years.

The Labor government's policy is to send minors home without charging them. However, lawyers and human rights advocates say many are being wrongly identified as adults because police are using a widely discredited test to ascertain their age. Indonesian diplomats believe 50 children are in custody, awaiting trial; some activists put the number at closer to 100.

The wrist X-ray test, which assumes that a youth with a mature skeleton is at least 19, has been rejected by Unicef and is banned in Britain. Four of Australia's leading medical bodies, including the Royal Australasian College of Physicians, have written to the Immigration Minister, Chris Bowen, warning him that the test is unethical and unreliable.

Mark Plunkett, a barrister who secured the release of three teenagers held in a maximum-security prison in Brisbane, believes children are being swept up in the demonisation of people-smugglers – described by the Foreign Minister, Kevin Rudd, as "the vilest form of human life". Although hundreds of Indonesians, mainly adults, have been arrested and prosecuted, they are mostly hand-to-mouth fishermen and sailors – not the "Mr Bigs" behind the people-smuggling operations. Mr Plunkett, who has taken up the issue at the request of Indonesian consular officials, called on the Australian government yesterday to work with Indonesia to gather evidence about the ages of boys in custody from parents, villagers and local officials.

"Children are being locked up in adult jails alongside paedophiles and sex offenders," he said.

His three clients – Ose Lani, 14, his cousin, Ako Lani, 15, and their friend, John Ndollu, 16, all from Manamola village on Rote Island, in southern Indonesia – were recruited as cooks and deckhands on a boat carrying Afghan and Iranian asylum-seekers. They were each promised $500 (£314), twice what they would normally earn in a year.

"They were told they were taking Muslims who were being persecuted to a safe place," Mr Plunkett said.

Their boat was intercepted in April last year by the Australian Navy near Ashmore Reef, an uninhabited Australian island in the Indian Ocean.

The three were arrested and spent eight months in a detention centre in Darwin. After undergoing the X-ray test, they were charged with people smuggling, manacled and flown to Brisbane, where they were strip-searched at the prison.

It was only after Mr Plunkett visited Manamola and took statements from their families and community leaders that prosecutors dropped the charges. The boys were released in June, having spent six months in jail, where their lawyer believes at least one was sexually abused. He said: "When I asked them, 'has anyone been bothering you or touching you?' one of them kept crying and convulsing," he said.

A spokeswoman for the Home Affairs Minister, Brendan O'Connor, said police liaised with their Indonesian counterparts to gather as much information as possible from home villages. She also defended the X-ray test, saying "we are not aware of a better physical test", and added that because of the mandatory five-year sentence "there's an incentive for people to claim they are minors".

The president of the Australian Human Rights Commission, Catherine Branson QC, said she was "most concerned" about the use of the test in people-smuggling cases. She has been pressing the Attorney-General, Robert McClelland, to review it. According to Mr O'Connor's office, there are 25 Indonesians in prison claiming to be under-age; the Department of Foreign Affairs puts the figure at 17.

While Indonesia has expressed its concern through low-key diplomatic channels, a Foreign Ministry spokesman told the Jakarta Post that the Australian government had breached the Vienna Convention on consular relations by not informing it until many months later that its nationals had been arrested.

Mr Plunkett believes the hysteria whipped up about asylum-seekers by both major political parties "has clouded the judgement of our police force and prosecutors".

The Prime Minister, Julia Gillard, is expected to raise the Bali teenager's case with Indonesian President, Susilo Bambang Yudhoyono, this week. However, there has been no suggestion that they will discuss the fate of the young Indonesians in custody here. Mr Rudd has told his staff to make the Australian boy their top priority.

The Shadow Treasurer, Joe Hockey, has described his situation as "a living nightmare for everyone".

The teenager was arrested after flying to Bali for a family holiday. His parents claim he is a habitual user of marijuana and have promised the Balinese court he will undergo rehabilitation if released.

Prosecutors have demanded a three-month jail term. The verdict and sentence are expected next week.

Hardline approach

Australian immigration policy has long been controversial.

During the economic tough years in the 1990s, immigrants were automatically detained while their visa applications were assessed. Since then, even with an improved economic situation, politicians have continued to act tough on people trying to enter the country, believing it "plays well" with working class voters.

In recent years a number of incidents have attracted scathing criticism from human rights groups. Many asylum seekers target Christmas Island, an Australian territory in the Indian Ocean, as an entry point. Last December, 48 people drowned trying to get the island.

Since then Prime Minister Julia Gillard has continued to press her case for immigration applications to be processed in Malaysia.

The policy – under which 800 asylum-seekers arriving in Australia would have been sent to Malaysia for processing in exchange for Australia accepting 4,000 refugees waiting in Malaysia to be resettled – was declared illegal by the High Court in August.