Bottoms English Lawyers initiated two class actions on behalf of First Nations families, against the Queensland Department of Child Safety based on complaints from hundreds of First Nations families about discriminatory experiences.

Our cases involve claims for breaches of the Racial Discrimination Act 1975 (Cth) by the Queensland Department of Child Safety, towards both children who were removed from their families, and parents who had children removed. In both groups, claims of unlawful discrimination on the basis of race or descent are made.

The claim on behalf of First Nations children who went through the child protection system alleges that the Department breached its obligations and failed to assist families to reunite or restore their family relationship, impacting on internationally recognised human rights. It claims that the Department failed to assist children in the child protection system to learn about and practise their culture, language or connection to Country.  It claims that the Department failed to investigate and locate family members who may be regarded as a parent in Aboriginal culture to care for a removed child or children, contrary to the Child Placement Principles in the Child Protection Act 1989 (Qld).

The lead applicant for the child group was removed on her first birthday and remained in the system to age 18.  During that time she was placed in numerous different foster homes and residential group homes. She claims that the Department knew she was First Nations, but refused to tell her of her First Nations relatives.

The parents’ case claims that the Department breached its obligations and failed to reunite or restore family relationships between parents and removed children, although parents had complied wholly or substantially with the requirements imposed by the Department following removal of a child or children. It also claims that the Department failed to assist parents by making no or no adequate attempts to investigate and locate family members who may be regarded as a parent in Aboriginal culture to care for a removed child or children, contrary to the Child Placement Principles in the Child Protection Act 1989 (Qld).

Our parent lead applicant who represents First Nations parents had all three of his children removed, including one child who was taken from their parents as a baby, at the hospital after birth.  To date his children have not been returned to his care.

These representatives are the “lead applicants” and they represent similar stories shared by thousands of First Nations people across Queensland. The parent and child lead applicants will represent  groups of people with similar discriminatory experiences in their dealings with the Department of Child Safety in Queensland. 

In late 2022, two representative complaints were filed with the Australian Human Rights Commission (AHRC), which is an independent statutory body – and is not a Court. This was the first step toward court proceedings. Following a failed mediation, the AHRC terminated the complaints, which cleared a path towards Court proceedings in the Federal Court of Australia. Proceedings were filed on 13 November 2023 in the Federal Court.

Two class actions on behalf of First Nations families have been launched against the Queensland Department of Child Safety based on complaints from hundreds of First Nations families about discriminatory experiences. These two classes actions are together referred to as the “DOCS Class Action”. The cases involve claims for breaches of the Racial Discrimination Act 1975 (Cth) by the Queensland Department of Child Safety, towards both children who were removed from their families, and parents who had children removed. In both groups, claims of unlawful discrimination on the basis of race or descent are made. It is also claimed the Department failed to adhere to the Child Placement Principles within the Child Protection Act 1999 (Qld).

The claim on behalf of First Nations children who went through the child protection system alleges that the Department breached its obligations and failed to assist families to reunite or restore their family relationship, impacting on internationally recognised human rights. It claims that the Department failed to assist children in the child protection system to learn about and practise their culture, language or connection to Country.  It claims that the Department failed to investigate and locate family members who may be regarded as a parent in Aboriginal culture to care for a removed child or children, contrary to the Child Placement Principles in the Child Protection Act 1999 (Qld).

The parents’ case claims that the Department breached its obligations and failed to reunite or restore family relationships between parents and removed children, although parents had complied wholly or substantially with the requirements imposed by the Department following removal of a child or children. It also claims that the Department failed to assist parents by making no or no adequate attempts to investigate and locate family members who may be regarded as a parent in Aboriginal culture to care for a removed child or children, contrary to the Child Placement Principles in the Child Protection Act 1999 (Qld).

The claim is against the State of Queensland as the Respondent. 

The claims outline a number of financial and non-financial remedies.

1. The establishment of a well-resourced consultation process designed to facilitate the restoration of family relationships for those impacted by the Department's actions.
2. Training for staff to interact with First Nations families in a trauma-informed and culturally sensitive manner.
3. A formal and public apology for the Department's child removal practices.
4. Financial compensation for those affected.

A class action is a representative proceeding where one or more people act as representatives of a larger group of people who have experienced the same, or similar harm that is caused by one entity.  That group of people are called “group members” or “claimants”.

The class action representatives are called “lead applicants”.

A class action can be pursued if:

• Seven or more people have claims against the same person(s)or entity; and
• The claims arise from the same, similar, or related circumstances; and,
• The claims involve at least one substantial common issue of law or fact.

In our case, there are two class actions – one for the parents, and one for the children, and we have asked the Federal Court that these two cases be managed together. We refer to the two class actions together as the “DOCS Class Action”.

Class actions are highly complex legal matters and often take anywhere from one to five years to be resolved. There are several reasons that class actions are lengthy, such as the complexity of the legal and factual issues involved, the volume of documents and evidence to be considered, the number of witnesses, and various strategies of the Respondent.

We estimate the DOCS Class Action to take between three to four years. Please note that this estimate may change as the case progresses.

Our team will do our best to provide updates on estimated timelines as the case progresses.

At this stage, there is no deadline for registration. 

There is a no requirement for group members to register their interest in the class action to be able to take part. But we anticipate that there will be a requirement to register to receive compensation, if any is granted. If a group member does not step forward and indicate their willingness to share in the settlement, then they will miss out. This may come before or after settlement and will ordinarily involve completing a form (available on the website, or by hard copy form).

We will update group members as the case progresses on any requirements for group members – this will be provided well in advance (for example: registration deadlines, deadlines for providing information).

Unfortunately, we cannot represent you or provide you with any legal advice regarding any current issues you are going through with the Department. We cannot assist you in having your kids returned to your care if they were removed. 

A class action is a different kind of legal matter – it’s not about one individual case but about the Department changing how they approach and deal with First Nations families. The cases seek to address the Department’s discriminatory conduct since 1992, and push for change in the future. 

While we cannot assist your individual case, we can provide some referrals and contacts for organisations that may be able to help you. 

The DOCS Class Action is funded by Therium Litigation Finance Atlas AFP IC - a litigation funder (Therium).

By funding the class action using a litigation funder, eligible group members can register their interest and participate in the class action without having to pay upfront for any legal costs. These fees will only be payable if the case is resolved either by way of a settlement or there is a successful outcome via a judgment. 

If the case is successful, both Therium and Bottoms English Lawyers (BEL) will seek approval for any of the costs they have incurred to be reimbursed. For Therium, the costs it will seek back include the fees it pays to BEL, fees for disbursements such as experts and barristers, and the costs it incurs in obtaining After the Event insurance. For BEL, the costs it will seek back include any fees that Therium has not paid during the life of the case, and BEL is also entitled to seek an uplift from the Court in relation to those unpaid fees. Both Therium and BEL’s costs will be assessed by the court and will only be reimbursed if they are considered fair and reasonable. 

Please note that if the case is successful, and either a settlement sum is agreed to or a judgment in favour of the Applicants is received, Therium is also entitled to seek a commission of 20% of the settlement or judgment sum after the costs of running the case have been reimbursed to Therium and BEL. This amount is also subject to Court approval. 

If the case is not successful (if either no settlement is reached or the Court does not award any damages) group members will not pay anything.

We note that class actions are very complex and expensive cases to run. BEL would not be in a position to run this case without using a litigation funder.

There are two groups of claimants: parents and children.

Parents 

Do you identify as Aboriginal and/or Torres Strait Islander, and:

1. have you had a child or children removed from your care by the Queensland Department of Child Safety, on or after 4 March 1992; and
2. were you given requirements set by the Department in order to have contact or reunite with your removed child or children?

If so, you are eligible to register your interest in the class action as an affected parent.

Children

Do you identify as Aboriginal and/or Torres Strait Islander and:

1. were at least 14 years old on 11 November 2023;
2. were you removed from your family by the Queensland Department of Child Safety, before you turned 18; and
3. did the removal from your family occurred on or after 4 March 1992?

If so, you are eligible to register your interest in the class action as an affected child.

You can do so online here or by calling the DOCS phoneline on 1800 405 405.

You do not need to share details of your story with us if you are not comfortable doing so, however we are interested in hearing your story if you wish to share it. Your story will be treated with strict confidentiality and will not be shared with the Department.

Unfortunately, family (both immediate and/or extended) cannot continue the claim on behalf of someone who has passed. If a person passes, their claim ends. 

Later on, when the cases have been through their preliminary stages, the Court will order an opt-out regime.  By opting out of the class action, you will remove yourself from the claim completely and will not receive any compensation from the case, if it is successful.  You can only opt out during specific, court-ordered periods of time. These time periods will be advertised.

Once the opt-out process starts, if you’re thinking of opting out we would recommend having a chat with someone on our team about why you would like to opt-out. Or alternatively you can seek independent legal advice before opting out.

Our team will travel out to community periodically to meet with prospective group members. Once we have confirmed locations, dates, times, and venues, we will advertise it or notify you directly.  

It is important to us that our team are trained in trauma-informed practice. We will make sure our interactions are as low impact as possible. We will connect with support networks around community so that they are available to you. 

You are welcome to have a support person/s with you when you meet with us. It is not a requirement to meet with us in person, and you are welcome to sign up on the website. 

The representatives in this action are the “lead applicants”. They represent similar stories shared by thousands of First Nations people across Queensland. The parent and child lead applicants will represent groups of people with similar discriminatory experiences in their dealings with the Department of Child Safety in Queensland. 

Yes, during the Parent's Claim Period, it was more difficult for the First Applicant and some or all of the Group Members, who are Indigenous parents, to achieve Family Healing (restoration, resumption or formation of a family relationship) with their children after removal by the Respondent.

If you have any further questions that our FAQs cannot answer, please use our contact us form here, or alternatively reach out via our hotline at 1800 405 405.