First Nations child removal discrimination class action lodged

First Nations people who allege they have experienced unlawful racial discrimination at the hands of the Department of Communities in Western Australia and the Department of Communities and Justice in New South Wales have taken their battle to the Federal Court. A class action on behalf of impacted families in the State of WA was lodged on 7 November 2024 and on 17 November 2024 in the State of NSW.   

Shine Lawyers’ Special Counsel, Caitlin Wilson, is spearheading the class action on behalf of the affected families. She says, “First Nations families allege that there has been widespread racial discrimination across a number of state governments that has resulted in the unlawful and unjust removal and separation of First Nations children from their families, and a loss in their cultural connection.”  

“First Nations children are consistently and significantly overrepresented in out of home care, and at the present time, Western Australia boasts the highest rate of over-representation in the country.  This class action alleges that this is largely because of the discriminatory conduct of the Department throughout each of the various entry points into the child protection system,” she said.   

While First Nations peoples represent only 3-5% of the overall population in Western Australia, children within this cohort are 19.7 times more likely than non-First Nations children to be removed from their families and placed into State care, and 19.4 times more likely to remain on long-term orders, with only around 7.8% of First Nations children being reunified with their families. 

“Families in NSW aren’t better off.  NSW has the lowest reunification of First Nations children at only 2.3%, has the third highest rate of First Nations children on long-term orders and First Nations children are around 11.5 times more likely than non-First Nations children to be living in out of home care.  Despite these bleak statistics, the proportion of expenditure on family and intensive supports services in NSW was below the national average and dropping”. 

Sarah, a mother of four, had her children taken into state care when they were very young. Her eldest three children who are now 20, 19, and 18, were each placed in care for seven years, while her youngest, aged 11, was taken just five days after birth and remained in care for nine months.   

During their time in state care, one of Sarah’s children was tragically subjected to sexual abuse. Despite these challenges, Sarah successfully worked toward reunification and had her parental rights reinstated. Today, all four of her children are back in her care, where they are being raised together as a family once more. Sadly, not all families have this ending.    

Of the effect the Department’s conduct has on families, Caitlin Wilson said, “Many of the families we have spoken to liken themselves to a modern-day Stolen Generation. We do not move forward by repeating mistakes of the past.” 

“Connections to culture and community must be preserved for these families. This class action aims to mark the beginning of the end to this unjust and unnecessary separation.”     

Megan Krakouer, Director, National Suicide Prevention and Trauma Recovery Project who has counselled many families through the trauma caused by this separation, has joined the campaign.    

“I wholeheartedly welcome the class action initiated by Shine Lawyers against the ongoing child removals in Western Australia. This legal action is vital in addressing the grave injustice faced by our First Nations people.   

“The systemic harm caused by modern-day Stolen Generations is devastating, with child removals increasing dramatically from 2,000 in care in 1997 to a staggering 23,000 today.     

“This highlights the urgent need for accountability and reform in the child protection system. Successive governments have failed to curb this trend, and this is an indictment.   

“We are not an industry—our children are not statistics. The time to act is now. I have witnessed too many tears of families, of children, the power imbalance, and cultural theft. For every 10 children removed, only one is reunified. This is the Black struggle,” she said.     

To be a part of this class action, you must:  

• be and identify as Aboriginal or Torres Strait Islander; and:    

• be an adult who was placed into out of home care as a child; or    

• be a parent, cultural parent or carer who was investigated by the Department or had a child removed from your care; or    

• be a family member whose application to care for a child who was removed by the Department was not assessed or was refused.  

The conduct of the Departments must have occurred in WA or NSW on or after 5 March 1992.      

The firm is also investigating First Nations child removal in other states. The relevant Departments in each state are currently referred to as follows:   

• Victoria – Department of Families, Fairness and Housing (DFFH);  

• SA – Department of Child Protection (DCP);  

To find out more, head to our websites:

WA First Nations Child Removal Class Action | Shine Lawyers

NSW First Nations Child Removal Class Action | Shine Lawyers 

The cases are filed as:  

JPP24 & ORS v STATE OF WESTERN AUSTRALIA  

JAMIE LEE HASSEN & ORS v STATE OF NEW SOUTH WALES