Queensland Government Faces Class Action Over Treatment of Indigenous Children

Indigenous families are taking legal action over past governmental conduct.

Local children play stick ball on a street in Aurukun, far North Queensland, Cape York, on July 19, 2022. AAP Image/Jono Searle

The Queensland government will face two class action lawsuits for failing to reunite Indigenous families affected by child protection laws.

The lawsuits, led by Cairns-based English Bottoms Lawyers’ Jerry Tucker, accuse the government of failing to support Aboriginal children in learning and practising their culture, language or connection to the country.

Specifically, they will focus on the Queensland government departments’ supposed failure to place Indigenous children removed from their immediate family with other family members.

“The cases do not make allegations about departmental decisions to remove a child but instead focus on their actions once a child is removed,” Ms. Tucker said.

“Specifically the actions taken when placing a child in the care of others and actions taken when families attempt to reunite with removed children.”

Ms. Tucker also alleges the government’s supposed negligence constitutes a systemic failure.

“Systemic failure to adhere to the child placement principles breaches internationally recognised human rights and has resulted in fractured family units as well as severing connections to culture and community.”

In terms of actual legislation, the lawsuits accuse Queensland’s Department of Child Safety, Seniors and Disability Services of breaching the Racial Discrimination Act 1975 (Cth) as well as the Child Placement Principle in the Child Protection Act 1999 (Qld).

Under the latter, the department is required to place Indigenous children removed from their immediate families in the care of other family members or Aboriginal carers if possible.

English Bottoms Lawyers have filed the suits alongside Indigenous barrister Joshua Creamer, who specialises in class actions and native title.

Hundreds of individuals and families have already signed up to the class actions, with Ms. Tucker confident that there are prospectively thousands of participants who will join.

Lead Claimants

The suits have two lead applicants.

Lead claimant for the parental case, Brett Gunning, says he has spent over a decade attempting to reunite with his children after their removal from his care.

Mr. Gunning’s central allegation is that the Queensland Department of Child Safety, Seniors, and Disability Services (DOCS) were unreasonably difficult in dealing with his requests.

“DOCS kept moving the bar. I kept reaching their milestones and then once I did, they kept moving the bar higher and higher. I could never obtain my children,” Mr. Gunning said.

Mr. Gunning himself was taken into DOCS' custody just a month after his birth in 1974 and subsequently adopted by a non-Indigenous family. Mr. Gunning says he was separated from his siblings and had no knowledge of the rest of his family until he turned eight.

“This is just intergenerational abuse of my family, from my grandfather to my mother, my mother to me, now me to my kids. Four generations. I’ve suffered greatly with depression; I’ve had to leave everything behind,” he said.

The lead claimant for the childrens’ case is 21-year-old Madison Burns, who was removed from her 17-year-old disabled mother shortly after her birth.

Ms. Burns then lived in a combination of foster homes, motels, residential group homes, and with maternal family up until the age of 18.

Ms. Burns claims her experience has detached her from her cultural background.

“I know nothing about my culture. I have dark skin and I know I’m Aboriginal and that’s it,” Ms. Burns said.

“I still have no idea who I am, I can’t tell you anything about my father’s side, where my country is, my language or anything about that culture.”

Indigenous Youth Incarceration

Indigenous children are currently overrepresented among both homelessness services and in the youth justice system.

According to the Australian Institute of Health and Welfare (AIHW), 49 percent of children aged 10-17 in detention in 2020-21 were Indigenous despite only 6 percent of Australian children aged 10-17 being Indigenous.

Queensland, although low relative to other states, incarcerated 153.6 Aboriginal and Torres Strait Islanders aged between 10-17 per 10,000 young people aged the same in 2021-22.

Western Australia had the highest Indigenous youth incarceration rate for young people aged 10-17, at 278.1 per 10,000 young people aged the same, exceeding the Northern Territory with 232.1.