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Qld lawyers say race not issue when placing Indigenous children in care

In the first appearance of the reunification class action, lawyers for the state of Queensland told a court it did not consider race when caring for Indigenous children who were removed from their families.

user iconNaomi Neilson 06 December 2023 Big Law
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A class action launched by Bottoms English Lawyers alleged the state of Queensland failed to adhere to child placement principles in the Child Protection Act 1999 (Qld) in its dealings with Indigenous children after they had been removed from their caretaker’s custody.

Christopher Murdoch KC told the Federal Court on Tuesday (5 December) morning that while the Queensland government is yet to put its defence forward, its contention is “any steps that were taken were based upon what was considered to be in the [child’s] best interests”.

“The steps that were taken were not taken on the basis of race,” Mr Murdoch added.


In the first case management hearing, counsel for the applicants, Dr Kristine Hanscombe KC, said Queensland failed to appropriately reunite Indigenous children with family members and did not support children with their connections to Country and culture.

The class action has been divided into the “parent’s case”, led by Brett Gunning, and the “children’s case”, led by Madison Burns.

In setting out the applicant’s case on Tuesday, Dr Hanscombe said the parent’s case would have a focus on the conditions the state of Queensland imposed on parents like Mr Gunning before they can be reunited with their children, including undertaking parenting courses, relocating to a suitable location or rehabilitating from an addiction.

“Mr Gunning and those he represents assert that despite their best efforts to comply with these conditions, they have found it much harder than other families to have their families restored,” she said.

“Some of these group members will have done a parenting course multiple times, and yet their children are not restored to them.”

Dr Hanscombe alleged the state of Queensland discriminated against these families because they are First Nations people.

The children’s case, which includes group members over the age of 14, will focus on the principles in the Child Protection Act, which requires that wherever possible, there is a “kinship placement” so there can be “continuation and fostering of cultural connections, linguistic connections and connections to Country”.

Dr Hanscombe alleged lead applicant Ms Burns was removed from her mother as an infant, but despite repeated attempts to learn more about her Aboriginal family, she has been rebuffed.

“She doesn’t know anything about her linguistic connections, she doesn’t know anything about her Country, and she doesn’t know anything about her culture, and she cannot pass that onto her child when she becomes a mother,” Dr Hanscombe alleged.

During the first case management hearing, Chief Justice Debra Mortimer asked the parties to “gaze into a crystal ball” to determine the timetable of the matter and make a call on whether it should remain in the Melbourne registry or be moved to Brisbane.

“I tend to think the matter needs to end up in Queensland at some point … I’m dealing with this matter today because it has not been docketed, and one of the decisions I have to make is who to docket the matter to, and that will be affected by location.

“There are costs to the court if a judge has to travel and particularly if a judge has to travel for a long proceeding,” Justice Mortimer said.

Dr Hanscombe said the firm and the funder are based in Melbourne and the applicants chose to issue in the Melbourne registry “for reasons of convenience and cost saving for the group members”.

The court then heard submissions on the live streaming and the court file, with the state of Queensland requesting this be kept at a minimum given the sensitive nature of the matter.

Dr Hanscombe also addressed the court on the issue of material held by the Queensland government that would assist the case, telling Justice Mortimer that while the case is a “long, long way” from a commercial case, it has “one feature in common”.

“When you plead a shareholder class action or such, as the applicant, you have your nose pressed up against the glass, you don’t know what’s happening in the back office.

“This case shares that characteristic. I accept Mr Murdoch says whatever Queensland did was in good faith … but that doesn’t actually tell us very much. The real nub of the case is likely to lie in internal policy documents,” Dr Hanscombe submitted.

“Only once you have engaged with the material, I suspect – and now I am really crystal ball gazing – will we be able to get into the nub of the cases and engage in mediation or other dialogue.”

The next case management hearing was set for April 2024.

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