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The Australian government has revealed that a further 220 Indonesian children may have been wrongly detained as adult people smugglers, doubling the number initially thought.
Late in 2023 the federal court ordered $27.5m in compensation for an estimated 220 Indonesian children who were wrongly detained as adult people smugglers between 2010 and 2012.
The children were wrongly deemed to be adults by federal police, who relied on a wildly inaccurate technique using interpretations of wrist X-rays to determine age.
In fact the children were as young as 12, and should have been sent home to Indonesia in line with Australian government policy. They were instead sent to immigration detention and Australian jails, including, in many cases, maximum-security adult jails, where they languished for years until the error was discovered.
A Guardian Australia investigation in 2022 revealed how the AFP relied on the wrist X-ray technique despite being aware of information casting serious doubt on its reliability and accuracy. The Guardian also revealed how dates of birth were altered on sworn legal documents to pave the way for the children to be prosecuted as adults.
The federal court is working through a process to identify the Indonesians involved and compensate them using the $27.5m won in the class action.
That process is being led by the administrator Mark Barrow, a lawyer with Ken Cush and Associates, the firm that represented the wrongly detained Indonesians.
The court heard on Wednesday that the commonwealth had shared new records which suggested that the number of those owed compensation has risen to a possible cohort of 440 people.
That is double the number initially thought.
Anthony Strahan KC, acting for the administrator, said that had caused a significant blowout in the administrator’s costs as he attempts to track down the Indonesians.
“There was an expectation that it may amount to more than [220 people],” he said. “No one was expecting it to be very substantially more than that.
“In fact as it’s turned out … records recently disclosed by the respondent have identified a possible cohort of universal group members in the amount of approximately 440 people.
“So the number of potential people has doubled.”
In class action cases of this kind, additional costs incurred by the administrator need to be approved by the court, a measure designed to stop legal costs unreasonably chewing through compensation amounts.
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But Strahan said the administrator could never have anticipated that the federal government would find an extra 220 Indonesians who needed to be found and potentially compensated.
“The total cohort is nearly twice as big as was anticipated and that has some fixed costs associated with it,” he told the court.
The counsel for the commonwealth, Jonathan Kirkwood SC, took issue with any suggestion that the federal government might be to blame for the late doubling of the cohort of Indonesians.
“There’s a lot of nuance,” he said. “And obviously there’s a lot of things that have happened in the meantime, including that the Indonesian lawyer, whose name I will not mispronounce, has provided additional information.”
The hearing continues before Justice Christopher Horan on Wednesday.
The imprisonment of the Indonesians was caused, in part, by the use of mandatory minimum sentencing laws, introduced by the Howard government, which compelled courts to hand out five-year prison terms for people smuggling.
Many of the children were duped into crewing the people-smuggling boats. They were from impoverished areas of Indonesia and were often given vague offers of work on boats, transporting cargo or livestock, only to find themselves transporting people to unknown locations.
Labor has had a longstanding position of opposition to mandatory sentencing laws because of the risk they would “lead to unjust outcomes” and are “often discriminatory in practice”.
That changed this month when it decided, contrary to its 2023 policy platform, to back mandatory sentencing for hate speech, part of its attempt to respond to antisemitism.
Documents obtained by Guardian Australia in the class action case show the Indonesian children repeatedly told immigration and police that they were children. The dates of birth they gave were altered – keeping the month and day but changing the year – to ensure their ages matched what had been suggested by the flawed wrist X-ray assessments.
Separately to the class action, 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”.
