Australian government ordered to mediate with Indonesians imprisoned in adult prisons as children
Dozens of young Indonesians who were wrongfully imprisoned as adults in Australia are on the verge of justice, after the Federal Court ordered the Commonwealth to mediate their long-running claim for damages and interests.
At least 120 Indonesians – now young men – are suing the federal government, alleging they were victims of a miscarriage of justice.
Many were subjected to a discredited wrist scan that suggested they were years older than they actually were.
But even if they win, a family will never be whole again.
Erwin Prayoga’s headstone – behind the family home on Rote Island in West Timor – is barely legible. But it tells a tragic story.
The dates of his birth and death are carved into a piece of weathered wood. They show that he was only 16 when he died.
Yet Erwin had spent two years in an adult prison in Australia, where at the age of 14 he was wrongfully convicted.
As a child, according to Australian policy, he should have been deported. Instead, he was imprisoned in maximum security prisons in Perth and Albany.
He was only released and repatriated to Indonesia after he fell seriously ill and underwent surgery, apparently for appendicitis.
But the stitches then became infected, and a few weeks after returning to Rote Island, he died a painful death.
“He was in so much pain”
“I am angry because a month after he returned home, he fell ill and died,” said his younger brother Baco Ali, as he tended to his brother’s grave behind the house. family.
“He was in so much pain, he rolled over, threw himself on the floor, screamed in pain holding his stomach,” he told the ABC.
“We took him to the local clinic and they sent us to a hospital in Kupang, where he spent two weeks before he died.”
Years later, Mr Ali is still searching for answers about his brother’s death and why he was not treated better in Australia before being sent home.
He blames Australian authorities for Erwin’s death, wrongfully imprisoning him in the first place, and then failing to care for him when he fell ill.
“How could they let this happen to Erwin?” He asked.
“The Australian government is supposed to be decent. They should have made sure he recovered before sending him home.”
Get out of poverty
Erwin Prayoga left Indonesia in 2009 to work as a crew member on a boat that smuggled asylum seekers to Australia.
It was one of several boats at the time stopped with asylum seekers from Afghanistan, Myanmar or the Middle East on board.
It was common for crew members to be children, with some as young as 12 years old. Poverty in Rote and other Indonesian islands sends many children out to sea in search of income.
Erwin’s boat was intercepted in waters off northwest Australia. The asylum seekers on board were taken into custody, while he and the other crew members were arrested.
A discredited X-ray method
Mr Ali said his brother repeatedly told authorities that he was only 14 and therefore a child.
But the Australian Federal Police refused to believe it and relied on a controversial X-ray technique that scans wrist bones to assess their maturity and age.
In Erwin’s case, he was considered to be 19 years old and was eventually imprisoned as an adult.
“The tool they used to measure his age was the wrong tool,” his brother said.
“Indonesians are different. We may only be children, but we start working when we are still children. So our bones may be denser.”
A subsequent investigation by the Australian Human Rights Commission found that the X-ray technique was “intrinsically flawed” and had long been discredited in other countries.
“A mature wrist does not indicate whether a person is over 18. Having a mature wrist is entirely consistent with a person being under 18,” the commission’s report said.
Erwin’s story is far from unique.
In April this year, the Western Australia Supreme Court of Appeal overturned the convictions of six other young Indonesian men who had also been jailed as children in adult prisons.
The court ruled that a “substantial miscarriage of justice” had occurred and that the Crown’s previous reliance on wrist x-ray evidence had raised “serious doubt as to the integrity of each guilty plea”.
More than 120 young Indonesians are now suing the Australian government for compensation for their wrongful imprisonment or detention as minors.
Like Erwin, many were also convicted based on wrist scans that were interpreted to show they were adults.
The class action in the Federal Court of Australia is on behalf of Ali Yasmin, who once shared a prison cell with Erwin.
Now in his late twenties, Mr Yasmin was 13 when he left his home on the island of Flores to work as a crew member on a boat intercepted by the Australian Navy in 2009, along with 55 citizens Afghans on board.
He spent nearly three years in Hakea maximum security prison in Perth after pleading guilty to human trafficking, before being released in 2012 and sent home.
The WA Court of Appeal ruled that his conviction was dangerous and constituted a miscarriage of justice.
Two other young men are also seeking to have their convictions overturned.
But class action lawyers say quashing a wrongful conviction is not enough for the more than 120 plaintiffs.
They want compensation, damages and other remedies under the Race Discrimination Act.
“The effects of spending long periods in adult prisons as a child are far-reaching, and they continue for each of these young men,” said barrister Sam Tierney in Canberra.
“When a child is placed in this situation and exposed to a series of traumatic events, the impacts can stay with these people for many, many years after the incident.”
The case was brought against the Commonwealth, but specifically refers to the Australian Federal Police, the Department of Immigration and Citizenship (DIAC) and the Commonwealth’s Director of Public Prosecutions.
Now, after years of legal arguments, the Federal Court has ordered all parties to mediate, to decide once and for all whether damages should be paid.
Mr Tierney said he believed there were many more cases than those included in the claim.
“We have no doubt that there are other young Indonesian men who were convicted as children,” he said.
None of the government agencies being prosecuted discussed the case with the ABC while it was still in court.
But in court papers, Commonwealth lawyers disputed claims they had known for decades that wrist X-rays were unable to reliably determine a person’s age.
They admit that previous court cases, as early as 2000, had raised concerns about the limitations of using x-ray analysis of the wrist, but say there were other decisions where courts had accepted the technology .
They also claim that despite detailed discussions between DIAC and other Commonwealth agencies in 2010-2011 – about the use of wrist X-rays and their reliability – AFP’s “probably preferred option” would continue to include radiographic analysis of the wrist.
The mediation process must be completed by March.
But even if the Indonesian claimants, including Mr. Ali, are successful, it will never bring back his brother, Erwin Prayoga.
“I have been angry for a long time,” Mr Ali said.
“I was so angry that my tears dried up. In the past, when I was asked about this, I cried. But I have no more tears.”
Additional research and production by Ake Prihantari and Ari Wu.