The First Nations Child Removal Class Action: What You Need to Know

This action rehashes the painful legacy of the Stolen Generation, with powerful parallels being drawn between historical child removals and today’s child protection practices. This landmark class action has the potential to have profound implications on Australia’s child protection policies and broader cultural accountability and awareness.

Federal Court Act 1976 (Cth)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

• The case concerned a charge against the defendant under section 19(1) of the Pitjantjatjara Land Rights Act 1981 (SA) for entering Pitjantjatjara lands without permission, raising questions of constitutional validity in relation to the Racial Discrimination Act. The Supreme Court of South Australia found that section 19 of the Pitjantjatjara Land Rights Act 1981 (SA) was inconsistent with section 9 of the Racial Discrimination Act, as it imposed a racial restriction on freedom of movement, rendering it invalid under section 109 of the Constitution.

Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650

• The meaning of “based on” in section 9(1) of the Racial Discrimination Act could be differentiated from other terms used in anti-discrimination legislation, such as “by reason of” or “on the ground of,” which had been interpreted elsewhere as requiring a causal connection, instead meaning “by reference to.”

Wotton v Queensland (No 5) [2016] FCA 1457

• In November 2004 Mulrunji Doomadgee died in police custody. Mulrunji’s death triggered civil unrest and a response from the Queensland Police Service (QPS). Justice Mortimer found that QPS’ response to Mulrunji’s death contravened the Racial Discrimination Act in a number of ways.

• Shine Lawyers have filed a class action lawsuit in WA and NSW against their respective Departments of Communities, alleging unlawful racial discrimination in the way they investigate First Nations families, remove children from their families, place them in out-of-home care, and fail to reunify them.
• The class action also addresses the lack of funding provided to Aboriginal Community Controlled Organisations to assist First Nations families in navigating the child protection system.
• The Aboriginal Child Placement Principle prioritises placing First Nations children with Aboriginal relatives or community members to maintain their cultural connections. Each jurisdiction has nuances in their implementation, with New South Wales consulting with extended family or kinship groups if a suitable person in the hierarchy cannot be found, and Western Australia considering non-Aboriginal caregivers who are culturally responsive as a last resort option.
• The class action alleges the Departments have breached section 9 of the Racial Discrimination Act, alleging both direct and indirect discrimination.
• Direct discrimination focuses on treating someone differently based on race, while indirect discrimination occurs when seemingly neutral rules practically result in disadvantages for certain groups.
• The class members have been organised into three eligible categories:
  • First Nations children who were removed from their parents, guardians or carers;
  • First Nations parents who were investigated, or had children removed, following which the Department failed to reunify the children according to the Child Placement Principles; and
  • Willing carers who were nominated by a family member or applied to the Department to care for a child who had been removed, who were rejected or not assessed by the Department.
• The systemic issues within child protection services that disproportionately affect Aboriginal families are the department’s intervention conduct, the use of risk assessment tools that have discriminatory impacts, and the standards imposed on First Nations parents that may clash with their cultural practices.
• The action argues that the overrepresentation of Aboriginal children in out-of-home care highlights the urgent need for addressing these disparities and promoting culturally sensitive approaches in child welfare systems.
• Applicants are not motivated by the potential monetary amount awarded as compensation, but rather the need for change and addressing the impact of historical injustices like the stolen generation.
• The class action aims to bring about reform in the system, secure compensation for affected families, and hold the department accountable to the Aboriginal Child Placement Principles, to ultimately minimise harm to Aboriginal families.

• When trying to determine your future path in law, you should first look to identify your strengths and passions.
• There are many opportunities to contribute to social justice in the law such as government, policy reform, research, academia, community legal centres, or litigation like class actions.
• Understand the long-term nature of change and reform in these spaces.  Celebrate small victories, and recognise that even small efforts can contribute to larger movements for equality and justice over time.

Australian Human Rights Commission (1997), ‘Bringing Them Home Report’

Davis, M. (2019) ‘Family is Culture: Independent Review of Aboriginal Children and Young People in OOHC in NSW’

Hearsay the Legal Podcast is recorded on the lands of the Gadigal People of the Eora nation and we would like to pay our respects to elders past, present and emerging.

 Before we begin today’s episode of Hearsay, we also want to let you know that in this episode, we may say the names of First Nations people who have passed away. 

Today on Hearsay, we’re talking about a landmark class action commenced in the Perth and Sydney registries of the Federal Court, alleging that various departments of child protection in Australia have engaged in unlawful racial discrimination, resulting in the unjust removal of First Nations children and the failure to reunify First Nations children with their families.

Now, this historic action recalls the painful legacy of the Stolen Generation and there are powerful parallels being drawn between historical child removals and today’s child protection practices. This action potentially has profound implications for Australia’s current child protection policies and broader cultural accountability and awareness.

Joining us today to talk about the class action is Caitlin Wilson, Special Counsel with the class actions team at Shine Lawyers. Caitlin is a fierce advocate for justice, representing Australians wronged by governments, businesses, and organisations, and Caitlin is the lawyer acting on behalf of the First Nations class in this class action.

Caitlin, thank you so much for joining me today on Hearsay.

TIP: So Caitlin just mentioned that the action is being brought under section 9 of the Racial Discrimination Act, which is a cornerstone provision designed to prevent both direct and indirect forms of racial discrimination. In addition to section 9, the Racial Discrimination Act includes specific prohibitions against discrimination in areas such as access to public places, housing, employment, goods and services, and the right to join trade unions, these provisions ensure that discrimination is unlawful in concrete, everyday contexts. Complaints of racial discrimination may be assessed under both section 9 and these specific prohibitions depending on the circumstances. Section 10 of the Racial Discrimination Act complements section 9 by guaranteeing equality before the law. It overrides any Commonwealth or state or territory law that deprives people of a particular race, colour or ethnic origin of rights enjoyed by others. Unlike section 9, which focuses on acts of discrimination, section 10 addresses the discriminatory operation of laws themselves. For example, it invalidates laws that authorise the managing of property owned by Indigenous Australians without their consent, unless such laws apply equally to all individuals, regardless of race. 

Now, the courts have provided important interpretations of section 9 to clarify its scope and application. In Gerhardy v Brown, the High Court observed that section 9 targets discriminatory acts rather than legislative processes. However, section 9 can render state laws invalid when they conflict with its provisions, according to section 109 of the Constitution, where a state law permitting acts that section 9 forbids would be deemed inconsistent and therefore invalid. In the Macedonian Teacher’s case, the Federal Court clarified the meaning of “based on” under section 9, which should be understood as “by reference to” rather than the narrow interpretation of “by reason of”. Additionally, the court ruled that the Briginshaw standard does not automatically apply to findings under section 9 unless the circumstances of the case justify heightened scrutiny.

Now, we’ve also just mentioned the Palm Island Case. So that one is a 2016 decision called Wotton v Queensland (No 5) [2016] FCA 1457. That one is actually one that we’ve spoken about on the show before. We had one of the barristers representing the applicants in that case, Joshua Creamer, as our guest on the show to discuss it. That episode is episode 84 and is called ‘Voicing History: Wotton, and the Continuing Development of Human Rights Class Actions’, if you want to go check it out. 

As a quick rundown, the Palm Island Case centred around the death of Mulrunji Doomadgee and the subsequent events on Palm Island in November of 2004. Doomadgee, a First Nations man, was arrested on Palm Island after an encounter during the arrest of another individual. Doomadgee was placed in a police paddy wagon and taken to the Palm Island Police Station. Within around half an hour of his arrival, he was found deceased on the floor of a watch house cell. An autopsy revealed that Doomadgee had suffered severe internal injuries, including a cleaved portal vein, a ruptured spleen, broken ribs, and a cut above his eye. When this information was publicly read out to the Palm Island community during a meeting, it triggered immediate unrest. The community members were angered by the apparent police involvement in Doomadgee’s death and the lack of transparency in the investigation, and they started protesting. As a result, the police station and courthouse were burned down. In response to the unrest, an overwhelming police presence was deployed to Palm Island. The small community, which typically only had around seven police officers, and four on duty at any given time, suddenly had over 100 officers, including 30 members of the Special Emergency Response Team. These officers conducted 18 raids on 17 homes, arresting individuals suspected of involvement in the unrest. Many Indigenous residents experienced police raids that were later found to be discriminatory. It was found that police leadership failed to take necessary steps to engage with the community, despite knowing the likelihood of the unrest. Instead, emergency declarations were imposed, restricting the movement of First Nations people while allowing non-Indigenous individuals to leave the island freely. The Federal Court ruled that the raids conducted by SERT officers were a breach of the Racial Discrimination Act. However, claims for aggravated and exemplary damages were unsuccessful. The judge did not order an apology, although one was later issued, and while no individual officers were found personally liable, the state accepted responsibility for the discriminatory actions of their law enforcement.

We’ll come back to that condition or conditions that have been imposed the class members allege is directly or indirectly discriminatory. Before we do that, though, as you said at the top of the episode, you are still identifying members of the class who may be eligible to register and join the class. There are three specific classes of individuals who may be eligible. Can you tell us about those classes?

The second category is the First Nations parents, and there’s two subcategories in here. One is where the parents were investigated by the department and didn’t actually have children removed at all, but were investigated. And then the second is parents who’ve had children removed and again – non compliance with the Child Placement Principles or the department failed to take appropriate steps to reunify the children with them following removal.

And then the third is what we call our willing carers and those are First Nations people who were either nominated by a family member to care for a child who was removed or made an application to the department and their application was ignored, or not assessed, or rejected. And that was very deliberate, that we included the willing carers, because oftentimes we hear that they say the reason why they couldn’t comply with the Child Placement Principles is because there was no one available, and I don’t accept that based on the way that Aboriginal families are structured. It is very community based. But what we found when we started talking to our potential group members, that really was flushed out was, there were so many people that wanted to be the carer and the department just wasn’t processing their application, and in WA, one of our lead applicants is someone where she had to take the complaint all the way to the Ombudsman, and she was successful and ended up having the relevant child placed into her care, but it took, I think it was around 18 months to two years from her identifying herself in the first instance to actually having the child placed with her, and in the interim, this young child was placed hundreds and hundreds of kilometers away from his family, kin, and community. And the claim period is from March, 1992, onward. That’s when the class action regime came into place and under the Federal Court Act under Part IV. And the reason this eligibility criteria has been set is because there’s both general duties by the department to ensure that when a child is removed, where possible, the child is placed with a member of their family – and that’s not just for Aboriginal children, that’s for all children that come under the department’s care. But then specifically, there’s the rules relating to the placement of Aboriginal children, which we’ve discussed before – the Child Placement Principles. And so the criteria that we’ve set really follows those Placement Principles and allows us to focus on the failure of the conduct of the department when not placing children in accordance with those principles and obligations. And as well, it allows us to concentrate on the conduct of the department during the investigations or the time in which the child was placed into out of home care, and then the impact that the department’s conduct has had on those families as a result of their failures to comply.

TIP:  So Caitlin was just discussing the class action regime. Class actions allow multiple individuals with similar claims to litigate collectively through a representative plaintiff or plaintiffs. This procedure, modeled after American style class action laws, as Caitlin mentioned, was introduced in the Federal Court in 1992 through Part IVA of the Federal Court of Australia Act and was later adopted in other states like Victoria, New South Wales, and Queensland. These actions help provide access to justice for those who might otherwise struggle to afford individual litigation, and they also promote efficient use of court resources. Now to initiate a class action in the Federal Court, section 33C of the Act sets out a few key threshold requirements. 

Now first, as Caitlin’s already mentioned, at least seven individuals must have claims against the same respondent arising out of similar or related circumstances, with substantial common issues of law or fact. These claims can be for various types of relief, such as damages or equitable remedies, even if individual assessment is needed between the claimants. The proceedings can involve different respondents or separate contracts as long as they share common legal or factual issues. 

Now, federal jurisdiction, which is essential for class actions in the Federal Court, extends to matters governed by federal law, such as consumer claims, product liability, and securities issues, or relevantly here, anti-discrimination laws. The court’s ancillary jurisdiction allows it to address related state law matters. However, claims purely under state law must be pursued in state courts, which has led to major state-based class actions – you might remember the 2009 Victoria Bush Fires or the 2011 Queensland floods. The determination of “substantial common issues” is crucial and hinges on whether the shared issue meaningfully impacts the conduct and outcome of the case. Courts have interpreted “substantial” as real and significant, not necessarily crucial to the case’s resolution. Also, since the requirement is similarly affected, it is not necessary for all members to be affected identically, section 33C(1) requires only that members’ claims arise from the same or related circumstances and present a substantial common issue of law or fact.

So starting with the first one, when I say the manner in which the department intervenes with First Nations families, it does encompass a broad range of conduct, but to give a few examples, that might include investigating the circumstances of First Nations families without reasonable grounds to do so, or where a child was not at risk of significant harm. It could be using emergency orders to remove a First Nations child without reasonable grounds to do so, or in the absence of any preliminary steps.

Interestingly, in New South Wales, there’s a recent report by the Auditor General that showed that in 65% of cases where Aboriginal children are removed, they’re being removed under emergency orders, which means that they’re bypassing the scrutiny of the court in obtaining order in the first instance, so that’s problematic. It can be in failing to take the least intrusive action into the life of a First Nations child when deciding what actions necessary to protect them from harm, or, as we’ve touched on before, failing to maintain the cultural connection of a First Nations child once they are actually in the out of home care system.

But I think one of the best examples I can speak to is the actual use of the risk assessment tools. So, taking New South Wales, for example, they use what’s called the Structured Decision Making tools. And as I just touched on, the report from the Auditor General of New South Wales that came out in June 2024 concluded that the use of these tools disproportionately affect Aboriginal families, but the department is still using them. And the reason why they disproportionately impact Aboriginal children and families is because they rely heavily on factors that are correlated with race. So for families to be considered high or very high risk, the abuse score has to be nine or more for neglect, and abuse is eight or more points. And the factors that increase the risk levels for families, amongst other things, include if the family has four or more children, if the parent has their own history of abuse or neglect as a child, if there’s been prior reports to the helpline, and if there’s been three or more screened in Risk of Significant Harm Reports at the helpline level – that can actually raise the risk level by three risk points – or where a parent has had a history of mental health, alcohol abuse, or drug use. And even if those issues are resolved, and the person has been clean and sober for a period of time, that can still give them a point on this point system. And what we know is that the tools fail to take into account that these risk determinants affect Aboriginal families disproportionately. And what I mean by that is that Aboriginal families have historically and continue to experience over surveillance and over reporting at the helpline level. Aboriginal families and households are twice as likely as other families to have four or more dependent children. Aboriginal families also experience poor mental health and increased use of drug or alcohol misuse. And I think the key point to remember here is that that’s due to current and historical stressors such as the removal of their child or the removal of themselves as a child, and the impact of the Stolen Generation and the intergenerational trauma that’s resulted from that. So, when we take these factors into account, we can see how the use of those tools puts Aboriginal families on unequal footing and results in more Aboriginal families being flagged as being at risk in the system.

And then I think that this is in turn, magnified by the fact that in the event that the department caseworker is not satisfied with the risk level  that the tools have produced, they can actually increase the risk level themselves by one, so put the families at high risk.

So I think the tools themselves are discriminatory and disproportionately affect Aboriginal families, but then we have the opportunity for caseworker bias to come into play and put families in a high risk category when maybe they shouldn’t be. So that’s the intervention conduct, when parents move through the child protection system, so once a child has actually been in out of home care. I think some of the practices that lead to further discrimination are what we touched on before, so the standards that First Nations parents are required to adhere to in order to avoid removal or for reunification to occur, and often these are incompatible with their culture and First Nations customs and traditions. So, for example, a common condition that we see for reunification might include undertaking a parenting course or an anger management course or counseling or some form of rehabilitation. But for First Nations people, the challenge for them lies in that the location, the content of the course, or the course administrators themselves might be culturally unsafe. The time frames in which the department says that parents should or need to meet certain conditions or requirements are also problematic for First Nations people, because if it’s, “you must obtain stable housing,” for example, there’s really lengthy waitlists for these services, and those are often linked to the restoration goals and that restoration work is often limited to uncoordinated and cold referrals or long waiting lists. And another good example is, when decisions are being made around the permanent placement of a child, the department will often make determinations based on the Western attachment theory, and that’s a very narrow construct and involves a singular attachment for a child to their care, and it doesn’t recognise the importance of kinship relationships and cultural identity development, whereas Aboriginal frameworks recognise broader relational structures and networks of responsibility and obligation, including grandmothers and uncles, aunts and other kins, so it puts them at a disadvantage for reunification as well.

And I think lastly the challenge for First Nations people is the way that the department communicates with them, and that can be particularly challenging for First Nations people whose second language is English, or who live in remote communities who don’t have access to legal advice, or to an Aboriginal support person, or an Aboriginal liaison officer to assist them in their communication with the department, and I think that in turn highlights the issues that I talked about at the beginning, which is there’s a real disconnect between the level of funding that’s being provided to ACCOs to enable them to do their jobs. Nationally, Aboriginal children are 10.8 times more likely than non Aboriginal children to be in out of home care, but on average, the total expenditure to ACCOs is only 6% nationally and I think that’s pretty shocking. It’s so disproportionate. But then we look at WA, for example, and they boast the highest overrepresentation rates in the country. So they are 20.4 times more likely than non First Nations children to be placed in the out of home care system, but only 3% of funding goes to ACCOs.

TIP:  Now, Caitlin’s just mentioned a recent report from the Audit Office of New South Wales. That report is called ‘Safeguarding the Rights of Aboriginal Children in the Child Protection System’ and was published in June, 2024. Now, the audit looked at how well DCJ and its contracted NGOs were protecting the rights of Aboriginal children in the child protection system between June, 2018 and June, 2023. This comes amidst ongoing concerns about the overrepresentation of Aboriginal children in out-of-home care. By June of 2023, Aboriginal children made up 40% of the out of home care population in New South Wales, even though they represent just 7% of the state’s child demographic. This over representation has been persistent, with one in eight Aboriginal children seen by caseworkers entering out of home care. And further, as Caitlin’s mentioned, 65% of those cases began with emergency removal powers, which bypass standard safeguards. Now the audit revealed some serious issues. According to the findings, DCJ hadn’t properly embedded the Aboriginal and Torres Strait Islander Principles into its governance or operations as required under the Children and Young Persons (Care and Protection) Act 1998 (NSW). This law ensures Aboriginal children and families have the right to stay connected to their culture and community and to have a say in decisions about their welfare. The audit also found that DCJ’s oversight system lacked performance measures and accountability specific to Aboriginal children, which led to poor compliance and ineffective application of these principles. The audit highlighted some clear areas where change is needed. It called for stronger governance, better accountability, and improved quality checks across the board. Some of the key recommendations included setting up a system to track how well the principles are being followed,  measurable goals for child protection practices, working closely with Aboriginal organisations to develop culturally appropriate solutions, and bringing in an independent review of the tools used for decision making.

So we know that those tools are currently in place and we had recognition and acknowledgement from the department that they do disproportionately affect Aboriginal children, but there’s no real plan, as far as I’m aware, for what’s going to happen. I think there’s some talk about changing them but there’s no real commitment, there’s no real outline, that I’ve seen anyway, as to how that’s actually going to be done, and I believe in Queensland they got rid of the structured decision making tools very recently.

TIP:  So Caitlin just mentioned that DCJ uses Structured Decision Making tools. SDM tools are designed to help mandatory reporters, so DCJ staff and child well being unit practitioners make critical decisions in child protection and well being cases. These assessments aim to help agencies make decisions that are more consistent and reliable and hopefully reduce the risk of further harm to children and speed up efforts to provide stable and permanent care. Now, in New South Wales, our suite of SDM tools include the Mandatory Reporter Guide, the Screening and Response Priority Tool, the Safety Assessment, Risk Assessment, and reassessment tools, and the restoration assessment. You’ll find similar suites of SDM tools in each state and territory in Australia.

Let’s talk about the parallels to the Stolen Generation. I think any of our listeners familiar with Australia’s history of Aboriginal child removals will have been drawing their own parallels from our conversation. But let’s talk about that. I think it’s inevitable that that will be a parallel that’s drawn in media coverage of this case, probably inevitable that that parallel will be drawn in the course of submissions on the case. So let’s talk about that and I guess how the legal frameworks that govern child protection have changed between now and that time in Australia’s history. Historically, what did the legal framework for child protection or removal of children look like in Australia?

So I think it really does demonstrate the power that class actions can have in driving reform.  And what happened there was that Shine started the class action and then –  I’m not sure exactly the timeframe – but I think probably about 12 months into the proceedings, all of a sudden, the Northern Territory brought in a redress scheme.

So, because of the eligibility of that redress scheme, what Shine did was look at what categories of people were not included and were not eligible under that redress scheme and pivoted and amended our group definition – and sorry I say we, I can’t take credit for it because I wasn’t on that matter – but the team picked up the people where there was deceased estates of members of the Stolen Generation who had died before the 5th of August 2021 – so that was the cut off date under the redress scheme – or who were living cares or siblings of children that were removed and then deceased estates of kinship group members. And that was recently just settled for 50.45 million.

Something that I’ve become aware of when we talk about strategic litigation, especially when brought by a single plaintiff or a small number of plaintiffs who don’t represent a class, for example, is that it can be difficult to obtain, for example, a judgment that may affect change that may result in a finding that, for example, a procedure or policy or framework used by the government is unlawful, where there’s this pressure between settling the case in the interests of the individuals in whose name the case is brought and, achieving that historic judgment. I think we saw that in some stolen wages cases where the settlement amount reached for members of the class could transform the individual’s lives, but to accept it would mean to accept not taking the case to a final judgment and making law. Tell me a little bit about the tension there, I guess, in the sense that you can be quite invested in the hope for, or the aspiration for systemic change, but at the end of the day, you represent the class members and their interests, which may be served by a compensatory outcome.

The statistics speak for themselves and there is an acknowledgement that Aboriginal families are disproportionately affected. So you would have to think that this is now a real opportunity for them to know that a class action is not going to go away. We’re now in court, and so we’ve got an opportunity to strike a balance between ensuring we get compensation for families because they absolutely deserve that, the impact is immense on them, and a bigger acknowledgement about that impact as well. And a public apology is one way to do that, but I think there really does need to be an element of that reform in the system. And I think that’s the only way that this class action will go away, that the numbers will start going down and the department can start being accountable for contributing to the downward trend rather than the upward trend.

TIP:  In New South Wales, there seems to be a growing and troubling over representation of Aboriginal children and young people in out of home care. To understand why this is happening, the New South Wales government launched an independent review in 2016, led by Professor Megan Davis. The review focused on the experiences of 1,153 Aboriginal children and young people who entered out of home care between July, 2015 and June, 2016. The findings were released in November, 2019 In a report titled ‘Family is Culture: Independent Review of Aboriginal Children and Young People in OOHC in NSW.’ The report highlighted many troubling trends and practices and concluded with 126 recommendations for structural reform, along with over 3,000 recommendations tailored to the individual scenarios of the specific children and young people it reviewed. We’ll include a link to the full report in the show notes if you’d like to take a further read into that one.

So they’ve really helped us in understanding our obligations to ensure that we’re culturally competent when speaking with these communities. And I think that  the commonality for us too, is that the child protection system itself is not designed with Aboriginal people in mind and it’s not set up to accommodate the unique requirements of First Nations peoples, which we’ve become more and more aware of in working with Josh and Melia and Aboriginal communities.

And things like gratuitous concurrence or body language or the different meaning or interpretation of English language can be very different in Aboriginal communities and how that then plays into the department’s assessment of them is often what is missed and is resulting and contributing toward that over representation. So I think it’s really important that we get the system itself right and the way that we communicate with Aboriginal people needs to be one that is compatible with their culture and customs and traditions.

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