The Australian government has been ordered to attempt to negotiate a settlement with more than 100 Indonesians who say they were wrongly imprisoned as adult people smugglers when they were children, on the basis of flawed medical evidence.
The 122 Indonesians launched a landmark class action against the federal government two years ago claiming wrongful detention between 2008 and 2011.
The children, some as young as 13, were held in immigration detention or adult jails using a deeply flawed wrist X-ray technique to estimate their ages.
Government policy required that minors be sent home rather than charged, but federal police relied on the X-ray technique to pursue the children as though they were adults.
Police had already been told the technique was unreliable and prone to error. The immigration department, by at least June 2010, also knew the method to be flawed, but did nothing to intervene to stop the prosecutions.
Many of the children were from impoverished regions of Indonesia and had been lured on to boats with vague promises of paid work, not realising they were to transport asylum seekers to Australia.
The Indonesians’ lawyers, Ken Cush & Associates, hope the case will give them substantial compensation for wrongful imprisonment. The commonwealth is defending the claim and has previously filed a defence rejecting most of the allegations.
Late last month, the federal court ordered the two parties enter mediation before a registrar until March 2023.
In the mediation, the two groups will exchange information on a confidential basis about each member of the class action. Ken Cush & Associates will also need to provide “particulars of the nature and quantum of each group member’s claims of loss and damage” by early next month.
The mediation could lead to a settlement between the parties. Should it fail, the commonwealth would need to retrieve and provide all of the documentary evidence it holds for the Indonesian children, and the matter would probably head to trial, probably sometime next year.
The lead plaintiff in the class action, Ali Jasmin, spent more than two years in a maximum-security prison but was released in 2012 and deported back to Indonesia due to doubts about his age. He is thought to have been just 13 at the time of his arrest. His conviction was overturned in 2017, a decision that has since prompted other convicted Indonesians to seek justice.
Earlier this year, the Guardian used a tranche of documents filed in a separate set of six appeals to show how federal police and senior figures in the then Labor government were told there were doubts about the accuracy of the X-ray technique to determine age well before some of the boys were jailed.
Internal records showed an investigating officer in some of the six cases had been involved in a remarkably similar prosecution eight years earlier, during which the court heard that using wrist X-ray evidence to determine age was open to error and “not an exact science”, and that the key reference tool on which it depended should be used with “judicious scepticism”.
Despite those concerns, police continued to rely on the wrist X-rays and used them to alter the dates of birth provided to them by the six children. The fictitious dates were placed on sworn documents used as the basis for the prosecutions.
Some of the six boys were held in maximum security prisons in WA for years before being released and sent home.
The six appeals were successful and the WA court of appeal found a “substantial miscarriage of justice” had occurred.
Two other Indonesians – Samsul Bahar and Anto – are also attempting to overturn their convictions. They had previously sought a referral from the then attorney general, Christian Porter, to allow them the chance for a fresh appeal, because they had previously exhausted their appeal rights on other, unrelated grounds.
Porter denied them the opportunity to appeal in 2020, saying they had no prospects of success, despite Jasmin’s conviction being overturned on the same grounds three years earlier.
The two boys, through Ken Cush & Associates, have since written to the new attorney general, Mark Dreyfus, asking him to use his mercy powers to allow their appeal and resolve the “mockery of justice” overseen by the last government.
