Background
This is a representative proceeding brought on behalf of First Nations people harmed by the removal of children from their families by the State of New South Wales. The applicants seek damages for racial discrimination contrary to the Racial Discrimination Act 1975 (Cth), spanning approximately 32 years from 1992 to 2024. The claims target the State’s use of decision-making tools (Reporting Tools) mandated for use by child protection notifiers to assess whether to report concerns about children to the Department.
The applicants comprise three groups: First Nations children removed from cultural family care; parents, guardians or carers investigated or whose children were removed; and willing carers whose applications were rejected or inadequately assessed. The core allegation is that the Reporting Tools incorporated factors—including alcohol and substance abuse, domestic violence, mental health issues, economic disadvantage, homelessness, and low birth weight—that correlate disproportionately with First Nations people, thereby making intervention in First Nations families more likely.
The applicants initially filed a complaint with the Australian Human Rights Commission, which the Commission President terminated on the grounds that there was no reasonable prospect of settlement by conciliation. Proceedings were then brought in the Federal Court. The State objected to the applicants’ proposed amended statement of claim on two grounds: that the direct discrimination claims were not maintainable, and that certain claims violated section 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth).
The Court’s Holding
Justice Owens found that the applicants had pleaded a viable cause of action for direct discrimination under section 9(1) of the Racial Discrimination Act. The central issue was whether the State’s mandated use of Reporting Tools incorporating factors disproportionately present in First Nations communities constituted conduct “based on race.” The State contended that the applicants had merely pleaded disparate impact—neutral criteria applied with differential effects—which would constitute indirect discrimination under section 9(1A), not direct discrimination.
The Court rejected this characterization. The applicants’ case was that the State, by selecting and mandating decision-making tools incorporating factors found disproportionately amongst First Nations people, had effectively “described First Nations people without naming them.” The Court held that this was sufficiently arguable as direct discrimination. The correlation between the Reporting Tools’ factors and characteristics disproportionately found in First Nations communities could support an inference that the conduct was “based on race,” without requiring proof of causation or intention. The Court noted that the Reporting Tools incorporated factors with sufficient “descriptive power to identify the race of First Nations people as the basis for the impugned conduct,” even though those factors were framed neutrally.
However, the Court refused leave to file the amended statement of claim in its present form. While some direct discrimination claims were found adequately pleaded, others failed to comply with section 46PO(3) of the Australian Human Rights Commission Act, which requires claims in proceedings following a terminated AHRC complaint to be the same as, or arise out of substantially the same conduct as, the subject matter of the original complaint. The Court ordered the parties to confer and prepare draft orders reflecting its reasons.
Key Takeaways
- A person need not prove that race “caused” impugned conduct to establish discrimination “based on race”—it is sufficient to show that the conduct turned on or was referable to race as a matter of substance, not merely form.
- Facially neutral factors in decision-making tools can constitute the basis for direct discrimination if they correlate strongly with and function as proxies for racial characteristics, even absent disparate impact analysis.
- Courts will examine the substance of government conduct and will not permit verbal formulas or neutral framings to defeat discrimination law protections.
- Claims arising from a terminated AHRC complaint must comply with section 46PO(3) requirements limiting the scope of subsequent litigation to the same or substantially same conduct, even if some claims are otherwise viable.
Why It Matters
This decision has significant implications for systemic discrimination claims involving neutral policies or tools that affect racial groups disproportionately. By confirming that direct discrimination claims can proceed where neutral criteria serve as proxies for race—without requiring comparative intent analysis or causation—the Court has expanded the potential reach of racial discrimination law to systemic practices in child protection and potentially other government contexts. This may require government agencies to audit their decision-making tools for hidden racial proxies.
The decision is also important for First Nations rights advocacy in Australia. It recognizes that centuries of overrepresentation in child protection systems may be perpetuated not only by overt discrimination but by ostensibly neutral systems that embed factors known to correlate with First Nations disadvantage. The Court’s framework treats the embedding of such factors as descriptive of race itself—a principle that could extend to other policy domains. However, the procedural limitation under section 46PO(3) signals that claims arising from AHRC complaints remain tethered to the scope of those original complaints, potentially constraining the reach of this principle in practice.