The Australian government has agreed to pay more than $27m to Indonesians who were wrongly detained or prosecuted as adult people smugglers while they were children using a deeply flawed wrist X-ray technique.
The commonwealth this week agreed to settle a class action brought by the Indonesians, some who were as young as 12 when they were locked up in adult prisons and prosecuted in adult courts as people smugglers between 2010 and 2012 during the highly charged political climate around border protection.
Despite many of the Indonesians telling authorities they were children, federal police relied on a wrist X-ray technique to convince courts they were, in fact, adults, paving the way for their prosecution as adult people smugglers.
Many of the children were lured on to the boats from their impoverished villages with vague offers of highly paid work, often unaware of their destination or that they were to transport asylum seekers. Federal police policy dictated that anyone caught on a boat under the age of 18 should have been returned to their home.
An investigation by Guardian Australia last year revealed federal police should have known of concerns about the reliability of the X-ray technique, which estimated age by comparing their bones to those of healthy, middle-class Americans. Despite police knowing of concerns about the technique’s reliability, it relied on it anyway.
The Indonesians who were wrongly detained have taken two steps towards justice. Half a dozen of the children have had their criminal convictions in the Western Australian courts quashed, with the court finding “a substantial miscarriage of justice has occurred”.
They and many others have also mounted a class action against the commonwealth in the federal court, represented by Ken Cush and Associates.
The case began with 122 class action members, though that number is understood to have grown in the two years since proceedings began.
The parties have reached an agreement to settle for $27.5m on Wednesday, plus legal costs, and are now seeking approval of the settlement by the federal court.
The court will give a chance for others to object to the settlement before a subsequent hearing in December.
Lawyers for the plaintiffs will then spend the next 12 months searching for additional Indonesians who may be eligible for compensation.
The lead plaintiff, Ali Yasmin, was taken to Christmas Island in December 2009 despite telling immigration authorities he was 14. He was prosecuted and jailed as an adult in a maximum-security prison before being released in 2012 and deported back to Indonesia. His conviction was the first to be overturned in 2017, before six more boys had their convictions overturned in 2022, as revealed by the Guardian.
Court documents in the class action argued that Australia breached international laws that state people who might be children should be treated as such until identified positively as adults.
Yasmin had alleged that 97 days of his detention were unlawful because authorities applied an “undifferentiated” approach to adults and children and breached the Migration Act’s requirement that detention be used as a last resort for minors.
He also claims to have been assaulted in Hakea prison in 2010 while held on remand.
Yasmin had also alleged breaches of the Racial Discrimination Act and duties of care to the people detained, relying on the AHRC’s findings in its 2012 Age of Uncertainty report.
Guardian Australia revealed this year that police, despite concerns about the reliability of the wrist X-ray technique, had used it to alter dates of birth given to them by the Indonesian children – changing the year of birth, but keeping the month and date – to turn them into adults and make their age fit the X-ray interpretations.
The new dates were used in prosecution notices, indictments and other sworn legal documents to prosecute the children as adults.
The government was also directly warned in June 2010, as many of the prosecutions remained ongoing, about the reliability of the technique. The immigration department briefing cited UK guidelines warning that wrist X-rays were prone to error.
“The issue of whether chronological age can be determined from the estimate of bone age has been discussed at great length in the literature,” the briefing said. “The answer is that it cannot.”
In 2012 the Australian Human Rights Commission investigated the detention of children on people-smuggling charges and delivered a scathing report, titled An Age of Uncertainty, which said Australia’s treatment of such children was “disturbing” and that “Australian authorities apparently gave little weight to the rights of this cohort of young Indonesians”.
