The federal attorney general has used her mercy powers to pave the way for two Indonesian children to overturn a shocking miscarriage of justice that caused their wrongful imprisonment as adult people smugglers.
The boys, both aged 15, were among hundreds of Indonesian children who were found on asylum seeker boats between 2010 and 2012 and wrongly deemed adult people smugglers by Australian police.
Children who were suspected of crewing asylum seeker boats were supposed to be sent home. Many were from desperate backgrounds and had been either tricked or coerced into boarding.
Australian police, though, ignored evidence that they were children and instead relied on a deeply flawed technique to deem them adults. The technique relied on interpretations of wrist X-rays to estimate age, and has now been completely discredited.
A Guardian Australia investigation in 2022 revealed the federal police relied on that technique despite being previously made aware of its potential unreliability and inaccuracy.
The errors led to boys aged as young as 13 being sent to adult maximum-security jails. They were quietly released and sent back to Indonesia when the errors were discovered.
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Australian courts have since repeatedly ruled the use of the wrist X-rays caused miscarriages of justice.
But some of the imprisoned children, including boys named Anto and Samsul Bahar, remain convicted criminals.
They have been stuck in a legal quagmire in the decade since their release, unable to overturn their convictions because they had already exhausted their appeal rights on other, unsuccessful grounds.
Their only option was to seek intervention by the federal attorney general, who holds the power to refer criminal cases back to the courts for a further appeal in special circumstances.
The former attorney general Christian Porter refused to do so, saying he didn’t think a court “could not reasonably conclude that a miscarriage of justice has occurred”. His decision was at odds with a ruling in a separate case, two years prior, that found the wrist X-rays caused a miscarriage of justice.
Now, Ken Cush and Associates, which represents Anto and Samsul, says Michelle Rowland has granted them the referral they needed, sending the pair back to the Western Australian courts for a fresh appeal.
Sam Tierney, the firm’s principal solicitor, said the process had taken six years.
“There remain a number of other Indonesian children who wish to seek to correct their Australian criminal convictions,” he said. “We are considering all legal options including options that will achieve a more timely and efficient review of those convictions.”
Rowland’s office could not comment on individual referrals, but a spokesperson said: “The Attorney-General has absolute discretion in deciding whether or not to refer a federal criminal matter to a court of appeal to be heard and determined as if it were an appeal by the offender.
“The Attorney-General exercises that discretion having regard to all relevant and available information at the time of the decision, including the applicant’s submissions and applicable case law.
“It would not be appropriate to comment on matters which have been referred to a court of appeal.”
Guardian Australia obtained photos of both Samsul and Anto at the time of their arrest. They clearly have a childlike appearance and told authorities they were under the age of 18.
The scandal has also prompted a civil case against the Australian government in the federal court. In late 2023, the 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 court heard last year 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.
