Case update: AHRC complaints filed against the NSW Department of Communities and Justice, and the WA Department of Communities
Shine Lawyers have now filed two separate complaints in the Australian Human Rights Commission (AHRC) against the Department of Communities and Justice (DCJ) in New South Wales, and the Department of Communities (DOCs) in Western Australia.
New South Wales and Western Australia are the first two States that Shine Lawyers has filed complaints in the AHRC against, to determine whether the relevant Departments have engaged in unlawful racial discrimination in their investigations of First Nations families, in removing First Nations children from their families and placing them into out of home care in breach of Aboriginal Child Placement Principles, and/or in failing to reunify First Nations children with their families.
What are the next steps?
Any complaint about an alleged breach of human rights or discrimination must be made to the AHRC. The AHRC will then investigate the complaint and determine the appropriate next steps, which may take a number of months. If the complaint is terminated, the person/s affected by the alleged discrimination may be able to apply to have the allegations decided by the Court, through a class action.
Those who have registered for this investigation will be kept up to date with the latest developments in this process.
Background
For thousands of generations, First Nations families and communities raised their children strong and safe in their culture. Today, First Nations children and young persons are significantly overrepresented at every point of the child safety system, from notifications to investigations, removals into out of home care, and permanent removals.
Despite multiple reviews and inquiries into the system of child protection over the last 30 years, the over-representation of First Nations children in out of home care has increased in every jurisdiction in Australia.
It is alleged that the widespread removal of First Nations children from their families – known as the Stolen Generations – has not ceased, but rather, has continued under the guise of legislative intervention in each State.
What is the First Nations Child Removal Class Action Investigation about?
This proposed class action alleges that the Departments of Child Protection engaged in unlawful racial discrimination in their investigation of First Nations children, in the removal of First Nations children from their families, and in failing to reunify First Nations children with their families following removal.
Shine Lawyers is seeking compensation for First Nations children and their families who have been subjected to hurt, harm, distress, humiliation, and/or a loss of culture and/or connection to Aboriginal family, kin, relatives and/or community, as a result of removal or other discriminatory practices of the Department.
Can I join the First Nations Child Removal Class Action Investigation?
There are three classes of people who are eligible to register their interest in the class action:
First Nations people who as children, were removed from their parents or carers by the Department and placed into State care, with a non-First Nations carer and/or were not reunified with their family following their removal;
First Nations parents or carers who have had a child removed from their care by the Department and placed into State care, with a non-First Nations carer and/or who did not have their children restored to their care;
First Nations people who applied to care for a family member (or were nominated to care for a family member) who was removed by the Department and their application was either not assessed or was refused.
If you meet the above criteria, and the removal in question occurred on or after 5 March 1992, you are encouraged to register for this class action investigation using the registration form below.
How to register for the First Nations Child Removal Class Action Investigation
To register on a confidential, no-cost, no-obligation basis, please click the button below and fill out the form.
Frequently Asked Questions
What are the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles?
The Aboriginal and Torres Strait Islander Child Placement Principle (ACPP) recognises the importance of connections to family, community, culture and Country in child protection legislation, policy and practice. The five core elements of the ACPP are: prevention, partnership, placement, participation and connection. Placing children into out of home care in accordance with the ACPP revolves around a placement hierarchy:
with Aboriginal and/or Torres Strait Islander relatives or extended family members/kin;
with Aboriginal and/or Torres Strait Islander members of the child’s community;
with Aboriginal and/or Torres Strait Islander family-based carers; and,
if the above options are not available, as a last resort, an Aboriginal and/or Torres Strait Islander child may be placed with a non-Aboriginal / non-Torres Strait Islander person.
The ACPP is reflected to varying degrees within the applicable State legislation.
It is alleged that the Department has failed to comply with the ACPP in removing First Nations children from their families and/or failing to reunify them with their families.
What are the consequences of Aboriginal children being put into out of home care?
Being deprived of the opportunity to have connection with extended family, kin and community damages Aboriginal peoples’ connection to culture, and negatively impacts all aspects of their lives. It leads to poor mental health, substance, eating and personality disorders, lower education attainment, higher levels of homelessness, higher rates of chronic health conditions and morbidity and higher suicide rates.
Will the Department know that I have registered for the class action?
No. Signing up for the class action is confidential, and your details will be kept confidential by Shine Lawyers. They will not be disclosed to the Department (or anyone else) without your express permission.
Does it matter what the Department’s reasons for removal were?
We understand that in many cases, the Department is alleged to have been removing First Nations children from their families for trivial reasons, which is distressing. However, the reason for the removal (or your interaction with the Department) does not impact your ability to register for the class action.
We are concerned with the impact of Departments’ policies and procedures on First Nations families before, during and after removal and in the ongoing case management – regardless of reasons for removal.
Can Shine Lawyers help me get my children back?
Unfortunately, Shine Lawyers are unable to assist or advise you with respect to any of your past, present or future interactions with the Department. The purpose of this class action is to shine a light on the injustices that Aboriginal and Torres Strait Islander children and families are experiencing directly as a result of their interaction with the child protection departments, and obtain compensation for children, parents and family members who we allege have been wronged by them.
Do I have to be the biological parent of a child that was removed to sign up for the class action?
No. We recognise that the First Nations kinship system and extended family structure is unique and pivotal to identity formation, cultural understanding and belonging.
As the First Nations family system is different to the nuclear or immediate family structure common in Western society, those vested with the caring responsibility of First Nations children extend beyond the immediate family group and may include aunts, uncles, cousins and grandparents.
These people, along with others who had the responsibility of caring for a First Nations child who was removed from their care, are eligible to register their interest in the class action.
When will the proposed class action start?
Any complaint about an alleged breach of human rights or discrimination must first be made to the Australian Human Rights Commission (the AHRC). The AHRC will then investigate the complaint and determine the appropriate next steps. A decision from the AHRC may take a number of months. If the complaint is terminated, the person/s affected by the alleged discrimination may be able to apply to have the allegations decided by the Court, through a class action. While the date the class action may commence is not currently known, Shine Lawyers’ website will be kept up to date with the latest case developments.
What is a class action?
When Governments, large companies or institutions do the wrong thing and people are harmed or suffer loss as a result, an individual can have little to no means of bringing a legal claim.
Class actions are an important mechanism within Australia’s legal system that allow large groups of people to come together to pursue a claim collectively.
For a class action to take place, there are three criteria that need to be met:
There must be 7 or more people that have claims against the same defendant; and
The claims relate to the same or similar circumstances; and
The claim must relate to at least one common issue of law or fact.
For more information about how class actions resolve, click here.
Does it cost anything to join a class action?
Shine Lawyers is committed to ensuring that everyone, regardless of their background or financial situation, has access to justice. We run our class actions in a way that means you are not exposed to any costs or financial risk, so joining a class action will cost you nothing.
When a class action is successful, the legal fees and costs to run the class action are deducted from the settlement amount that is approved by the Court. If the class action is unsuccessful, we will ensure there are no out-of-pocket costs to you.
How long do class actions take to resolve?
It can take up to several years for a class action to resolve. The time taken from case commencement through to resolution and settlement administration depends on the particular case, and the nature of the claim.
For more information about class actions and how they work, click here.
Will my contact details be kept private?
Yes, your contact details will remain confidential and we will seek your consent before disclosing any of your personal information (including before such disclosure is required by the Court).
Shine Lawyers will only use your personal information strictly for the purpose of the legal proceedings.
‘Growth of Re-connection’ artwork by Mununjali and Kabi Kabi artist, Navada Currie.
The artwork reflects the experience of families that have been impacted by the injustices and trauma of being separated. The three horizontal lines in the centre are a representation of the barriers that have been put up by the Department. The central element represents the work that Shine Lawyers is doing with the class action; breaking through these barriers, seeking justice, and helping to right wrongs. There are two sides to the story. The underside of the artwork acknowledges the darkness and harm that have been caused. The upper side of the artwork shows the growth of re-connection to family and discovering one’s identity and culture. The smaller dots become more condensed towards the centre, depicting the idea of people and families coming together. The four colours represent each of the states taking part, along with the vast and diverse landscapes across Australia. When viewed in full, the artwork reflects the idea of a family tree that has been brought together again.
Meet the First Nations Child Removal Class Action team
Shine Lawyers’ First Nations Child Removal Class Action team includes some of the firm’s most experienced litigators, solicitors and support staff. You can learn more about the team running this class action by clicking on their profile below.
