Federal Court of Australia

Hassen v State of New South Wales [2026] FCA 812

ORDERS

THE COURT ORDERS THAT:

1. The parties are to confer and prepare a form of order which gives effect to these reasons, and provide an agreed form of order or, if agreement cannot be reached, competing forms of draft orders, to the chambers of Owens J by 10 July 2026.

2. Any party that wishes to make any submission in relation to the appropriate order for costs (if agreement cannot be reached) must file and serve submissions of no more than 2 pages in length by 10 July 2026, with any submissions in reply, of no more than 1 page in length, to be filed by 17 July 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

OWENS J:

INTRODUCTION

1 By these representative proceedings the applicants seek to advance claims on behalf of themselves and three categories of group members, all of whom are said to have been negatively affected by the actions of the State of New South Wales in connection with the removal of First Nations children from their families. The applicants contend that the State has engaged in racial discrimination, contrary to the Racial Discrimination Act 1975 (Cth).

2 The three categories of group members are broadly as follows:

(a) First Nations children who were living with a parent, guardian or carer, in accordance with their culture, but who were removed from that care and placed into the care and responsibility of the State, and who thereby suffered harms associated with their removal from their cultural community (referred to as Child Claim Group Members);

(b) First Nations parents, guardians or carers who were investigated by the State in relation to their care of their children, or whose children were removed from their care by the State, and who thereby suffered harms associated with the loss of their ability to fulfil their cultural practices and traditions in relation to the care of children, to transmit their culture to those children, or their loss of connection with the children (referred to as Parent Claim Group Members); and

(c) First Nations people who applied for or were nominated to care for a Child Claim Group Member who were not assessed in an adequate or timely manner or at all, or had their application refused, and who thereby suffered harms associated with their loss of ability to fulfil their cultural practices and traditions in relation to the care of children, to transmit their culture to those children, or their loss of connection with those children (referred to as Willing Carer Claim Group Members).

3 The claims span a period of approximately 32 years from 1992 to 2024. A particular focus of the applicants’ claims is the decision-making tools used or mandated for use by the State in relation to the assessment of the risk of harm to children, and related decision-making about their care. In very broad terms, the applicants contend that those decision-making tools used factors and risk determinants which correspond with what they termed “Relevant First Nations Social and Economic Factors” in such a way as to make it more likely that the State would intervene in relation to the care of First Nations children, and less likely that they would remain in, be placed in, or returned to, the care of First Nations people. The State’s use of (or mandating the use of) those decision-making tools is alleged to constitute both direct racial discrimination contrary to section 9(1) of the RDA, and indirect racial discrimination (relying on the extension of section 9(1) effected by subsection (1A)).

4 A representative complaint was initially made to the Australian Human Rights Commission pursuant to Part IIB of the Australian Human Rights Commission Act 1986 (Cth), and subsequently amended on various occasions with the leave of the President. The President ultimately terminated that complaint pursuant to section 46PH(1B)(b) of the AHRC Act (that is, because there was no reasonable prospect of the matter being settled by conciliation), and proceedings were then commenced in this Court.

5 There followed a series of events, the details of which are unnecessary to recount, over the course of which the applicants’ pleading was refined. The end point of that process was a particular form of a document entitled “Further Amended Statement of Claim”, that the applicants now seek leave to file. The State objects to that leave being granted, on two grounds:

(a) the direct racial discrimination claims pleaded by the applicants are not maintainable; and

(b) certain claims are not able to be included in the proceeding by reason of non-compliance with section 46PO(3) of the AHRC Act (in that the pleaded claims are not the same as (or the same in substance as), or do not arise out of the same (or substantially the same) conduct as, the subject matter of the complaint terminated by the President).

6 Over the course of their disputation concerning the pleadings, the parties have filed a number of interlocutory applications. I will not describe them now; I think it is uncontroversial that their fate will be determined by the way in which I have resolved the State’s objections to the applicants’ proposed amended pleading. The applicants have also sought leave to file a further amended originating application. I did not understand there to be any separate objection to that leave being granted, but the terms of the document do refer to the proposed amended pleading, and for that reason I would defer granting leave to file it until the question of leave in relation to the pleading is resolved. I do not expect the question of leave in relation to the proposed amended application ultimately to be controversial.

Direct Discrimination claims

7 The State submitted that paragraphs 21B to 21G, 30B to 30GA, and 49A to 49ED of the proposed amended pleading (which constituted the entirety of the pleaded claims of direct discrimination) did not (and could not be amended to) disclose a viable cause of action in respect of direct discrimination.

8 The State’s fundamental objection to all of those paragraphs was that, so it was submitted, they failed to identify a relevant “distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin” within the meaning of section 9(1) of the RDA. The merits of the State’s overarching submission will be examined by reference to paragraph 21B, which sufficiently presents the fundamental issue raised. Following that, however, it will be necessary to examine certain discrete issues arising in relation to other particular submissions.

Paragraph 21B

9 Before coming to the terms of paragraph 21B itself, it is necessary to summarise some other aspects of the pleading upon which it depends:

(a) In paragraph 16C, the applicants plead that the State required “Notifiers” to use “Reporting Tools” to determine whether to make a report about a child. A Notifier is, in broad terms, a person with mandatory reporting obligations under the Children and Young Persons (Care and Protection) Act 1998 (NSW), or who otherwise makes a report about a child under that Act. The Reporting Tools were particularised to mean specified manuals or other structured decision-making tools.

(b) In paragraph 16D, the applicants plead that the Reporting Tools used “factors and risk determinants to determine whether Notifiers were required to report concerns” about children. The factors and risk determinants specified in each Reporting Tool are set out in the particulars, and include matters such as:

(i) alcohol and substance abuse;

(ii) domestic violence (past or current);

(iii) mental health;

(iv) economic disadvantages (e.g., failure to provide adequate food, shelter, clothing, medical attention, or hygienic home conditions);

(v) homelessness; and

(vi) children born premature or underweight at birth.

(c) In paragraph 16E, the applicants plead that the Reporting Tools made the existence of a factor or risk determinant a matter weighing in favour of a Notifier making a report about a child. Furthermore, those factors and risk determinants were said to correspond with what were labelled “Relevant First Nations Social and Economic Factors”. The particulars to paragraph 16E make clear enough that the Relevant First Nations Social and Economic Factors are the matters that were pleaded in paragraph 16A.

(d) In paragraph 16A, which is the sole paragraph appearing under the heading “Relevant First Nations Social and Economic Factors”, the applicants plead that First Nations people in New South Wales are more likely than non-First Nations people in New South Wales to have various characteristics, including:

(i) experiencing alcohol or substance abuse (whether resolved or otherwise);

(ii) experiencing domestic violence;

(iii) experiencing mental health issues (whether resolved or otherwise);

(iv) being unemployed or economically disadvantaged;

(v) experiencing homelessness; and

(vi) having been born, or having a child that is born, prematurely or with a low birth weight.

(e) In paragraph 16F, the applicants plead that, as a result of the foregoing matters, the Reporting Tools were more likely to result in the reporting of Child Claim Group Members and Parent Claim Group Members to the State, compared to non-First Nations children and parents.

10 Paragraph 21B then provides as follows:

The conduct of the Respondent in requiring Notifiers to use the Reporting Tools in the manner pleaded in paragraphs 16C-16F:

(a)    distinguished between children who possessed, or whose parents, guardians or carers possessed, the factors and risk determinants pleaded in paragraph 16D and those who did not and placed weight on those factors and risk determinants in favour of requiring Notifiers to report concerns to the Department as pleaded in paragraphs 16D-16E;

(b)    further and in the alternative involved a preference for children who did not possess, or whose parents, guardians or carers did not possess, the factors and risk determinants pleaded in paragraph 16D and placed weight on those factors and risk determinants in favour of requiring Notifiers to report concerns to the Department as pleaded in paragraphs 16D-16E;

(c)    that distinction and/or preference was wholly or partly based on the First Nations race or descent of the Child Claim Group Members:

PARTICULARS

i. the distinction and/or preference was based on race in that the factors and risk determinants that the Department placed weight on in favour of requiring Notifiers to report concerns to the Department correspond with the Relevant First Nations Social and Economic Factors as pleaded in Paragraphs 16C to 16F.

ii. the Respondent’s conduct in relation to Ms Hassen as pleaded in paragraphs 4A and 5C of Annexure A amounted to a distinction and/or preference based on Ms Hassen’s race as Ms Hassen possessed some or all of the following factors and risk determinants:

1. her parents were economically disadvantaged;

2. prior reports had been made to the Helpline;

3. her mother had recently given birth to her brother;

4. her parents had experienced alcohol abuse, substance abuse and domestic violence.

iii. the Respondent’s conduct in relation to Mr Shipman as pleaded in paragraphs 25A and 30C of Annexure A was a distinction and/or preference which it may reasonably be inferred was based on Mr Shipman’s race as Mr Shipman possessed some or all of the following factors and risk determinants:

1. his parents were economically disadvantaged;

2. prior reports had been made to the Helpline;

3. his parents had experienced substance abuse and domestic violence.

11 The references in the particulars to certain paragraphs in Annexure A to the proposed amended pleading do not provide any meaningful additional definition to the legal basis upon which the applicants’ claims are brought. Paragraphs 4A and 25A plead the detail of reports that were made to a State helpline before the first and second applicants were removed from their parents, and paragraphs 5C and 30C simply plead that by reason of (relevantly) the matters pleaded in paragraph 21B, the State was in breach of section 9(1).

12 Paragraph 30B pleads, on behalf of the Parent Claim Group Members, a broadly equivalent claim of direct discrimination based on the State’s requirement that Notifiers use the Reporting Tools.

13 I have already mentioned that the State’s fundamental objection to the applicants’ direct discrimination pleading is that it fails to identify a relevant “distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin” within the meaning of section 9(1) of the RDA. The evaluation of that submission must commence, therefore, with the identification of certain matters concerning the construction and operation of that statutory provision.

14 Section 9(1) of the RDA provides:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

15 The operation of that provision is extended by subsection (1A), which provides as follows:

Where:

(a)     a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)    the other person does not or cannot comply with the term, condition or requirement; and

(c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

16 The reason that I have set out subsection (1A) is because the relationship between that subsection and subsection (1) played an important role in the State’s argument. I will return to that topic shortly, but for now it is sufficient to observe that the core operation of section 9(1) prohibits “direct discrimination”, while subsection (1A) extends its operation to cover “indirect discrimination”.

17 In any event, the fundamental structure of section 9(1) was explained by Mortimer J in Wotton v State of Queensland (No 5) [2016] FCA 1457 as follows (at [530]-[531]):

[Section] 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.

The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened.

18 In relation to the requirement that an act of the relevant kind be “based on” race, the Full Court in Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39 at [28(g)] (McKerracher, Rangiah and Charlesworth JJ) approved the following statement of the primary judge in that case:

[T]he term ‘based on’ does not connote a relationship of cause and effect, whether in a ‘but for’ or in any other sense. It signifies that the discrimination must be ‘on’ racial grounds: Gerhardy v Brown at 81 (Gibbs CJ). In Macedonian Teachers’ Association at 27, Weinberg J said:

[The] expression [‘based on’] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics ‘caused’ the impugned conduct.

This reasoning was endorsed on appeal: Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at [8] and by the Full Court in Bropho v Western Australia [2008] FCAFC 100, (2008) 169 FCR 59 at [67]-[68]. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: Wotton at [551][.]

19 It is worth setting out what Mortimer J said in Wotton at [551]:

As I have said above, it is well-established that the phrase “based on race” in s 9 does not imply any causal requirement but connotes that the act involving the distinction, exclusion, restriction, or preference be done, or undertaken, by reference to race: see Macedonian Teachers’ Association at 29-30 (Weinberg J), approved by the Full Court on appeal ([1999] FCA 1287; 91 FCR 47 at [8]). Although the principle is not in doubt, the connection between race and the conduct of the QPS in this case was sometimes either simply asserted by the applicants, or said to be obvious. More than assertion is required: the search is for the basis of the impugned conduct. On what does the conduct turn? In asking that question, the basis of the impugned conduct must not be conflated with intention or subjective purpose.

20 Where an act is done for multiple reasons, section 18 of the RDA is relevant:

Where:

(a)     an act is done for 2 or more reasons; and

(b)    one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done for that reason.

21 Against those statements of principle, it is useful to distil the way that the applicants have framed the relevant aspect of their direct discrimination case in paragraph 21B:

(a) The relevant “act” of the State was requiring Notifiers to use the Reporting Tools which operated in a particular manner (i.e., that pleaded in paragraphs 16C to 16F).

(b) That act is said to have involved a distinction between people who possessed and those who did not possess the factors and risk determinants used in the Reporting Tools.

(c) Alternatively, the act is said to have involved a preference for people who did not possess the factors and risk determinants used in the Reporting Tools.

(d) The pleaded distinction or preference was wholly or partly based on race because:

(i) the factors and risk determinants used in the Reporting Tools corresponded with the Relevant First Nations Social and Economic Factors; or

(ii) insofar as the first and second applicants are concerned, they possessed certain of the factors and risk determinants (which correspond with the Relevant First Nations Social and Economic Factors).

22 The State’s objection to this pleading reduced, I think, to a complaint that the applicants’ case went no further than asserting that the mandated use of the Reporting Tools had a differential effect on First Nations people compared to non-First Nations people. The applicants did not, it was submitted, identify or plead any sufficient basis upon which it could be said that requiring Notifiers to use the Reporting Tools was an “act involving a distinction … or preference based on race”.

23 That is, the State submitted that the applicants had pleaded an act that distinguished between people who possessed, and people who did not possess, the factors and risk determinants specified in the Reporting Tools (or an act involving a preference for people who did not possess those factors and risk determinants). But those factors, it was submitted, even if it were accepted that they overlap strongly with the Relevant First Nations Social and Economic Factors, have nothing, in and of themselves, to do with race, colour, descent or national or ethnic origin. The pleaded distinction was thus drawn, or the preference expressed, by reference to neutral, non-race-based, factors. It was, accordingly, not possible to say that the pleaded act was “based on race”. The most that could be said was that drawing a distinction, or expressing a preference, based on the factors and risk determinants specified in the Reporting Tools may have a race-based effect (that is, the application of the Reporting Tools has the effect of distinguishing between First Nations people and non-First Nations people, or manifesting a preference for the latter over the former). The State thus submitted that the applicants’ case was, in substance, one of indirect discrimination, which could only be brought within the framework of subsection 9(1A).

24 The applicants’ fundamental response to that submission was to say that they were not simply relying on the disparate effect of the mandated use of the Reporting Tools on First Nations people compared to non-First Nations people. Their submission was that the correlation between the Relevant First Nations Social and Economic Factors and the factors and risk determinants used in the Reporting Tools was sufficient to support a pleading that the distinction or preference in question was based on race. To deny that an act involving a distinction or preference by reference to a series of factors that are found disproportionately in First Nations communities was based on race would be, it was submitted, to “wash[] the race out” of plainly race-based conduct.

25 A subtle distinction may thus be observed between the case the applicants say they have pleaded and a case of indirect discrimination. The distinction may be traced to the fact that a correlation between particular factors and a particular race may be relevant to the existence of discrimination in two broad ways. On the one hand, the use of factors that are facially neutral, but highly correlated to a particular race, to draw distinctions or express preferences, may simultaneously supply and conceal the true race-based nature of conduct. On the other hand, such factors may explain the differential impact of non-race-based conduct that is the defining characteristic of indirect discrimination.

26 There is no suggestion that the operation of section 9(1) of the RDA can be defeated by verbal formula; of necessity it looks to the substance of impugned conduct. So the mere fact that the Reporting Tools are facially neutral cannot be determinative of whether the imposition of a requirement to use them is “based on race”. The question is whether, by pleading the correlation between the factors and risk determinants promulgated in the Reporting Tools and the Relevant First Nations Social and Economic Factors, the applicants have articulated a sufficiently arguable case that the State’s conduct was “based on race”.

27 The applicants need only show that they have pleaded a cause of action with some chance of success, even if only weak: see, e.g., Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42] (Perram, Dodds-Streeton and Griffiths JJ). I am satisfied that they have cleared that hurdle. Their case, in effect, is that the State has described First Nations people without naming them by its selection of factors that are found in materially greater frequencies amongst First Nations people compared to others. They have identified the factors in the Reporting Tools that they rely upon, and the basis upon which, and the extent to which, they say that each relevant factor exists disproportionately amongst First Nations people.

28 The applicants have not, in other words, as the State submitted, pleaded facts capable of demonstrating no more than that the application of neutral criteria will have a disproportionate effect on First Nations people. They have pleaded that the factors in question, although framed neutrally, have sufficient descriptive power to identify the race of First Nations people as the basis for the impugned conduct. Whether or not that case will succeed, or even whether it is a strong case, is not a question that I am now called upon to decide. The basis upon which the applicants contend that the State’s conduct is based on race has been exposed in the pleading, and the State will be able to respond accordingly.

29 The conclusion to which I have come does not involve any rejection of the State’s submission that subsection 9(1A) exhaustively defines the scope of indirect discrimination for the purposes of the RDA: see, e.g., Australian Medical Council v Wilson [1996] FCA 591; (1996) 68 FCR 46 at 52-55 (Heerey J). That is to say, I have decided the application on the basis that section 9(1), in its core operation, is confined to circumstances where a person is treated differently because of his or her race, and does not encompass cases where a person is affected differently by reason of his or her race. For the reasons I have given, the applicant pleads a case that falls within the conventional bounds of the concept of direct discrimination.

30 Nor, in this context, have I relied upon any potential for the race-based nature of the pleaded conduct to be inferred from its effects. The State submitted, while accepting that it is possible to infer that particular conduct was based on race, that it is important always to bear in mind that the relevant issue is “the actual basis for the conduct”: see, e.g., EIX20 v State of Western Australia (No 2) [2025] FCA 28 at [123] (Banks-Smith J). It went on to submit that the applicants were “suggesting that the Court may infer that using decision-making tools that apply neutral criteria unrelated to race are in reality “based on race” within the meaning of section 9(1) because they result in different outcomes when applied to First Nations people”.

31 I do not consider, however, that the applicants’ case in this respect depends upon reasoning of that kind. That is to say, the logic of the applicants’ case in this respect is not that the basis of the pleaded conduct can be inferred from its effects. The pleading makes no such contention. Rather, the applicant relies directly on the fact that the State mandated the use of decision-making tools that incorporated factors that were found disproportionately amongst First Nations people.

32 Finally, in this regard, I do not consider that any of the various arguments advanced by the State about the difficulty of understanding (and thus pleading to) the applicants’ direct discrimination case rise to a level that would warrant a refusal of leave to amend. For example:

(a) The State complained that the fact that the applicants relied upon a number of different factors meant that there were a large number of alternative cases that it was required to meet. At one level, that point may be accepted. It is tolerably clear (albeit not explicit) that the applicants rely on each pleaded factor and risk determinant specified in the Reporting Tools (and their correspondence with the Relevant First Nations Social and Economic Factors). That is to say, if the applicants fail to make good their reliance on some particular factors for whatever reason, then they maintain reliance on whatever factors they have established. The result is that the applicants’ case involves a number of different potential combinations of factors. I do not, however, consider that this introduces any vice into the pleading. It is almost inconceivable that the State’s response to the pleaded case will depend upon which precise combination of factors the applicant may ultimately establish a basis for relying upon. I certainly cannot see any reason why the State would need to plead to every possible combination (if any) in its defence.

(b) The State also complained that the function of the reference in particulars (ii) and (iii) to paragraphs 4A, 5C, 25A and 30C of Annexure A was unclear. I am not persuaded, however, that there is a problem sufficient to warrant a refusal of leave. The function of paragraphs 4A and 25A seems to me to be no more than to identify the circumstances that show that the alleged discrimination occurred “in relation to” the first and second applicants (in that both were the subject of reports to the Helpline). They do not augment the matters relied upon as showing that the conduct was “based on race”. And paragraphs 5C and 30C simply link the allegation of direct discrimination as (relevantly) pleaded in paragraph 21B to the first and second applicants (again, without otherwise augmenting the case in any way).

(c) The State made a further complaint about particulars (ii) and (iii), which was that “the only things which seem to be the basis for an allegation of a preference based on [the first and second applicants’] race is factors that attach to other people”. But the particularised factors (such as having parents who are economically disadvantaged, who had experienced alcohol or substance abuse, and who had experienced domestic violence) are relied upon as factors possessed by the first and second applicants (i.e., that they have parents with those attributes). Such factors form part of the applicants’ case about the Relevant First Nations Social and Economic Factors, and are particularised in order to demonstrate that they applied to the first and second applicants themselves.

33 For these reasons, I am not satisfied that the applicants’ pleading of a case of direct discrimination, as exemplified by paragraph 21B, is such as to warrant a refusal of leave to amend.

Paragraphs 21C and 30C

34 The claim of direct discrimination pleaded in paragraph 21C is, in many respects, similar to paragraph 21B. It is concerned, not with the mandated use of the Reporting Tools, but with the State’s requirement that its officers use certain “Investigation Tools”. The Investigation Tools were described and defined in paragraph 16G as certain manuals, guidelines or other decision-making tools used “to make decisions during the investigation and assessment of risk of the Parent Claim Group Members”. In paragraph 16H it was pleaded that the Investigation Tools used factors and risk determinants (similar to those used in the Reporting Tools); in paragraph 16I it was pleaded that the presence of those factors and risk determinants (which, as with the Reporting Tools, were said to correspond with the Relevant First Nations Social and Economic Factors pleaded in paragraph 16A) weighed in favour of intervention; and in paragraphs 16J and 16K it was pleaded that, in the premises, the Investigation Tools were more likely to result in intervention by the State in the lives of Child Claim Group Members, Parent Claim Group Members and their families, compared to non-First Nations children and parents.

35 Paragraph 21C was then as follows:

By requiring that its Officers use the Investigation Tools, the Respondent:

(a)    distinguished between children who possessed, or whose parents, guardians or carers possessed, the factors and risk determinants pleaded in paragraph 16H and those who did not and placed weight on those factors and risk determinants in favour of undertaking interventions in the life of a child and their family, including the removal of the child from their home as pleaded in paragraphs 16H to 16I;

(b)    further and in the alternative involved a preference for children who did not possess, or whose parents, guardians or carers did not possess, the factors and risk determinants pleaded in paragraphs 16H and placed weight on those factors and risk determinants in favour of undertaking interventions in the life of a child and their family, including the removal of the child from their home as pleaded in paragraphs 16H to 16I;

(c)    that distinction and/or preference was wholly or partly based on the First Nations race or descent of the Child Claim Group Members.

PARTICULARS

i.     the distinction and/or preference was based on race in that the factors and risk determinants that the Department placed weight on in favour of undertaking interventions in the life of a child and their family correspond with the Relevant First Nations Social and Economic Factors as pleaded in Paragraphs 16C to 16F;

ii.    for the claim period from 2001 to 2012, the Secondary Risk of Harm Assessment – Information Gathering Practice Tool treated the Aboriginal race of any person in the home as a risk factor in favour of intervention including removal of a child from their home.

iii.    the Respondent’s conduct in relation to Ms Hassen as pleaded in paragraphs 5A, 5B, 5C, and 5D of Annexure A amounted to a distinction and/or preference based on Ms Hassen’s race as Ms Hassen possessed some or all of the factors and risk determinants particularised at paragraph 21B and because she lived in a home with Aboriginal people present.

iv.    the Respondent’s conduct in relation to Mr Shipman as pleaded in paragraphs 30A, 30B, and 30C of Annexure A was a distinction and/or preference which it may reasonably be inferred was based on Mr Shipman’s race as Mr Shipman possessed some or all of the factors and risk determinants particularised at paragraph 21B and because he lived in a home with Aboriginal people present.

36 Paragraph 30C pleads, on behalf of the Parent Claim Group Members, a broadly equivalent claim of direct discrimination based on the State’s requirement that its officers use the Investigation Tools.

37 The separate issue raised by the State in relation to these two paragraphs concerned the particularisation of the use of the “Secondary Risk of Harm Assessment – Information Gathering Practice Tool” (which is one of the defined Investigation Tools) (see particular (ii) to paragraph 21C quoted above). The State submitted:

The relevant tool asks whether any person in the home is Aboriginal, along with any other risk factors. This is one question out of approximately 92 questions across a range of topics about parents and family relationships. Even if the Court were to read this one sentence in the manner contended for by the applicants, the Court could not be satisfied that the Department’s use of this tool involved a “distinction, exclusion, restriction or preference” based on race or descent: as explained in Barngarla at paragraph 28, the Court is seeking to ascertain the “actual basis of the conduct”, being the use of the tool in the context of removing First Nations children from their parents.

… Having regard to the tool read as a whole and in context, the Court could not find, based on a single question, that the use of the decision making tool involved differential treatment based on race or descent.

38 The conclusion that I have reached in relation to the general, or overarching, submission of the State means that the premise of this objection (that one question in one tool alone cannot provide a sufficient basis for a pleading of direct discrimination) is not made out. That is to say, the applicants’ case as to why the State’s conduct in requiring its officers to use the Investigation Tools was based on race also includes the correspondence of the factors and risk determinants specified in those tools with the Relevant First Nations Social and Economic Factors. The applicants’ additional reliance, in the context of the Secondary Risk of Harm Assessment – Information Gathering Practice Tool, on the explicit factor relating to the presence of First Nations people in the home, could not possibly weaken that general case. In any event, as the applicants submitted, a pleadings dispute is not the occasion upon which the Court should enter into a debate about the respective merits of competing constructions of a document. The meaning and effect of the particular factor relied upon by the applicants should be determined at trial, in the context of all relevant evidence.

Paragraph 21CA

39 The claim pleaded in paragraph 21CA raises a different issue (which is also found in certain other paragraphs). It pleads a claim of direct discrimination in relation to the manner in which the State’s officers used the Investigation Tools as follows:

In the manner by which the Respondent’s Officers applied the Investigation Tools in accordance with the requirement pleaded at paragraph 21C and in connection with their duties as employees or agents of the Respondent, the Respondent’s Officers:

(a)     distinguished between the Child Claim Group Members who were more likely to be subject to intervention conduct, and non-First Nations Children, who were less likely to be subject to Intervention Conduct; and/or

(b)    showed a preference for non-First Nations children and young people, who were less likely to be subject to Intervention Conduct than the Child Claim Group Members;

(c)    the distinction and/or preference was based on race.

PARTICULARS

i.     it may reasonably be inferred from the over-representation of First Nations Children in out of home care as pleaded in paragraphs 19-21 that the Respondent’s Officers applied the Investigation Tools in a manner that was affected consciously or unconsciously by the First Nations race of the Child Claim Group Members.

ii.    Particulars will be provided following discovery.

40 Paragraphs 19 to 21 plead various respects in which First Nations children were over-represented in relation to various child protection actions taken by the State, or metrics related to child protection actions taken by the State.

41 It may thus be seen that, unlike the paradigm pleading that I have set out in relation to paragraph 21B above, this part of the applicants’ pleading relies solely on an inference drawn from the outcome of the State’s use of the Investigation Tools.

42 The State objected to this category of pleading on the ground that the inference of race-based conduct was drawn from nothing more than the effect of the conduct (which it said was not permissible), and that that inference could not be sustained in light of the use of race-neutral criteria in the relevant tools (even if those criteria might impact members of different races differently).

43 There was no dispute that it is legitimate for an applicant to rely on inference in relation to the basis of impugned conduct. As Banks-Smith J observed in EIX20 at [123]:

Further, the discussion in Barngarla makes clear the Court may proceed on the basis of inference. This means there must be an examination of the actual basis for the conduct, but that basis may be inferred from the relevant circumstances, including the conduct of the parties. In this case there is no doubt that the matters relied upon by the applicant in the (currently) pleaded case are minimal, in terms of purportedly providing the basis for the drawing of an inference. He relies on a number of facts at present, being: the statement to the effect that ‘everyone else’ was granted permission to attend; that he was denied permission and is Aboriginal; that no non-Aboriginal person was denied permission; and that the denial of permission was a form of punishment that had a heightened effect on an Aboriginal person and was used on the basis that he was Aboriginal. It may be that at trial these matters, assuming they are proven, are an insufficient or an inappropriate basis to persuade the Court that the relevant inference should be drawn, but I do not agree with the State’s submission that such a plea, if permitted, would be struck out. It cannot properly be said that there is no reasonable cause of action disclosed. The applicant is in the difficult position that it may not be possible for him to provide further information which might support his case pending completion of discovery. However, I am satisfied that there is sufficient basis pleaded for the State to know the allegation brought against it. I consider it is in a position to plead in response to the claim made. The claim is not an abuse of process but should be considered in the context of the facts and circumstances as disclosed at trial. It gives rise to an arguable cause of action that the applicant, in contrast to all non-Aboriginal detainees who might be subjected to punishment, was denied permission to attend, and such denial was on the basis of his race, in that there was a real and tangible link between the denial of permission, its effect on him and his Aboriginality.

44 The real problem with paragraph 21CA, it seems to me, is not the fact that it relies on inference. It is that it does not identify, except at the highest level of generality, what conduct, or act, is alleged to breach section 9(1). To say only that “the manner by which the Respondent’s Officers applied the Investigation Tools” distinguished between First Nations and non-First Nations children (or expressed a preference for the latter over the former), in that First Nations children were more likely to be subject to intervention, does not in any meaningful way articulate what was done (that is, what the impugned “manner of application” was that was based on race).

45 The logic of the claim pleaded in the prior paragraph (i.e., paragraph 21C, which I have considered above), is that the required use of the Investigation Tools in accordance with their terms would have operated to distinguish between, or express a preference between, First Nations and non-First Nations children. Paragraph 21CA is plainly intended to make some additional allegation (whether concerning the way that discretions within the Investigation Tools were exercised, or concerning deviations from, or non-applications of, provisions in the Investigation Tools, or something else). The problem is that the pleading does not disclose what is alleged to have occurred.

46 The statement in the particulars that it may be inferred that the Investigation Tools were applied “in a manner that was affected consciously or unconsciously” by race does not assist (and, on one view, exacerbates the problem). The inference upon which the applicants rely is incapable of shedding light on the nature of the relevant conduct. It is possible that the over-representation of First Nations children in out of home care might support an inference that some identified conduct was based on race. But it cannot assist in the identification of the conduct itself. That, I think, is the difference between the present circumstances and those with which Banks-Smith J was dealing in EIX20. In that case, the impugned conduct was clearly identified (i.e., the denial of permission to attend a cultural celebration), and the question was then whether the identified matters were capable of supporting an inference that that conduct was based on race. Here, in the absence of any meaningful identification of the conduct in question, it is not possible to assess whether the matters relied upon are capable of supporting an inference that the conduct in question was based on race.

47 It follows that I would not give leave to the applicants to file an amended pleading that contained paragraph 21CA.

48 The same vice affects paragraphs 21DA, 21EA, 30CA, 30DA, 30EA and 49AA (and, in consequence, paragraphs 21FA, 30FA and 49EA) and for the same reasons I would not give leave to the applicants to file an amended pleading containing those paragraphs.

49 I am not persuaded, however, that the problem with those paragraphs is not capable of being cured. It follows that I would allow the applicants the opportunity to amend those paragraphs, if so advised.

Paragraphs 21CB and 30CB

50 Similarly to paragraphs 21C and 30C, paragraphs 21CB and 30CB plead on behalf of the Child Claim Group Members and the Parent Claim Group Members, respectively, a claim of direct discrimination in relation to the State’s requirement that its officers use a particular tool known as the Screening and Response Priority Policy and Procedures Manual. It is sufficient to quote paragraph 21CB, which provides as follows:

For the claim period August 2010 onwards, by requiring the use by its Officers of the Screening and Response Priority Policy and Procedures Manual, the Respondent:

(a)    distinguished between the Child Claim Group Members and non-First Nations children and young people by stating that reports in relation to Aboriginal children and young people may be more urgent and serious than they initially appear to be, and that Officers need to take this into account when completing the Screening Criteria Tool and the Response Priority Tool;

(b)    showed a preference for non-First Nations children and young people by stating that reports in relation to Aboriginal children and young people may be more urgent and serious than they initially appear to be, and that Officers need to take this into account when completing the Screening Criteria Tool and Response Priority Tool.

(c)    The distinction and/or preference was based on the race of the Child Claim Group Members.

PARTICULARS

i.     The distinction and/or preference was based on the race of the Child Claim Group Members as reports in relation to the Child Claim Group Members were treated as more serious by reason of the First Nations race of the Child Claim Group Members.

ii.    Further particulars will be provided following discovery.

51 The State submits that it is necessary to have regard to the full passage in the relevant policy, which says:

In many Aboriginal communities, there can be situational pressures and previous dealings with FACS that make it difficult for people to report their concerns. Hence, the reports they do make may frequently be more urgent and serious than they initially appear to be. Workers need to take this into account when assessing information from the notifier and when completing the response priority tool.

52 The State went on to submit:

When read in full and in context, the above passage is plainly saying that in certain cases previous dealings with FACS may make First Nations people reluctant to report concerns and thus the relevant manual encourages workers not to minimise concerns that are expressed by First Nations people. Far from being discriminatory, the Court would read this as an attempt by the Department to be sensitive to the legacies of past interactions.

53 Once again, I do not consider that a pleading argument is the occasion to resolve the true meaning and effect of the particular tool upon which the applicants rely. In any event, it is not certain that, even if the State’s contentions in relation to the tool in question were accepted, that that would mean that the applicants would be unable to establish a case of direct discrimination by reference to it. It follows that I am not persuaded that these paragraphs provide any reason to refuse leave to the applicants to file their proposed amended pleading.

Paragraphs 49B to 49D

54 By paragraphs 49B to 49D, the applicants plead a claim of direct discrimination against the Willing Carer Claim Group Members in the following terms:

49B.    At all material times, the Respondent failed to make active efforts in a timely manner or at all to identify and contact the Willing Carer Group Members to ascertain their ability to care for the Child Claim Group Members.

PARTICULARS

i.    Further particulars will be provided following discovery.

49C.    At all material times, the Respondent:

(a)     failed to conduct an assessment of the Willing Carer Group Member applications in a timely manner or at all; or

(b)    failed to give genuine consideration to the Willing Carer Group Member applications; or

(c)    failed to place the Child Claim Group Members with Willing Carer Group Members.

PARTICULARS

i.    The particulars at paragraph 19(f)(i)-(iii) are repeated.

ii.    Further particulars may be provided after the provision of expert evidence or otherwise as this Honourable Court may direct.

49D.    The Respondent’s conduct as pleaded in paragraphs 49B to 49C above:

(a)     distinguished between the Willing Carer Group Members, who were not identified, assessed, or approved in a timely way, and non-First Nations potential carers, who were identified, assessed or approved in a timely way;

(b)    further and in the alternative restricted or excluded the Willing Carer Group Members from caring for the Child Claim Group Members while not restricting or excluding non-First Nations potential carers from caring for the Child Claim Group Members in the same way;

(c)    further and in the alternative preferred non-First Nations potential carers to the Willing Carer Group Members as carers for the Child Claim Group Members;

(d)    that distinction, restriction, exclusion or preference was based on race.

PARTICULARS

i.     it may reasonably be inferred from [the] fact that First Nations children are not likely to be placed with kin or a First Nations Carer as pleaded in paragraph 19(f) that the failure to assess or approve the applications of the Willing Carer Group Members was based on race.

ii.    Further Particulars will be provided following discovery.

55 Paragraph 19(f) of the proposed amended pleading, to which reference is made in those paragraphs, is an allegation that First Nations children were not likely to be placed with a relative or a First Nations carer (with the accompanying particulars identifying, by reference to certain studies and statistics, the proportion of First Nations children who were and were not, in addition to the availability and assessment of willing carers).

56 The individual claims of the sixth and seventh applicants are pleaded in Annexure A (between paragraphs 234 and 244 for the sixth applicant, and, relevantly, between paragraphs 245 and 254A for the seventh applicant). It is sufficient for now to record the general effect of those paragraphs being:

(a) In relation to the sixth applicant: that she is a First Nations woman, who has three children. A child with whom she had a family connection was removed from the care of their parents, and placed with at least ten different carers. The sixth applicant communicated with the State in relation to the placement of the child, including expressing a willingness to care for them, and identifying others who would be willing to care for them. The State informed the sixth applicant that she would not be assessed as a potential carer for the child, and it did not do so.

(b) In relation to the seventh applicant: that she is a First Nations woman, who the State was informed was willing to care for a child to whom she was related and who had been removed from their parents’ care. She was then not contacted by the State for at least three months. In that time, the child was placed in the care of non-First Nations carers.

57 The State raised various objections to that pleading.

58 First, the allegations were said to be vague, and to assert conclusions that depend on factual matters that are not stated or explained. It was submitted in relation to paragraph 49B, for example, that it was necessary for the pleading to specify:

(a) the circumstances of the conduct described in paragraph 49B, including the persons who are said to have acted on behalf of the State;

(b) when the State communicated with any particular applicant;

(c) why such communication was not “timely”; and

(d) how the State communicated with any particular applicant.

59 Secondly, it was submitted that it was unclear how the specific pleading in relation to the sixth and seventh applicants (who are the applicants that bring the Willing Carer Claims) in Annexure A relate to paragraphs 49B to 49D. Additionally, it was submitted that the matters pleaded in Annexure A in relation to those applicants were, in themselves, insufficient to constitute a properly pleaded claim.

60 Thirdly, the State submitted that paragraph 49D simply asserts a generalised comparison with non-First Nations potential carers who are said to have been assessed in a timely way, and no foundation was provided for that allegation (including in Annexure A).

61 Fourthly, it was submitted that the relevant factual allegations in Annexure A relate to the effect of the decision-making tools on the assessment of potential carers (and thus do not identify any differential treatment of the kind required to found a breach of section 9(1) of the RDA).

62 Overall, I am satisfied that the applicants have sufficiently pleaded a case in relation to the Willing Carer Claim Group Members. It is plainly neither necessary nor appropriate for the applicants to plead the facts and circumstances pertaining to each individual group member (such as the details of communications between the State and individual group members, the State’s individual consideration of particular group members, and so forth). It is enough that the applicants have alleged that there was a differential treatment of First Nations and non-First Nations willing carers, and that they have identified the form that that differential treatment took (i.e., the matters pleaded in paragraphs 49B and 49C). The particular manifestation of that differential treatment in an individual case is not required to be pleaded at this stage of a representative proceeding.

63 A sufficient basis for the pleading of the race-based nature of that differential treatment is to be found in the inference available from the matters pleaded and particularised in paragraph 19(f). It may well be that the State will deny that the inference the applicants seek to draw from the rates of First Nations children who are placed in the care of First Nations carers is the only available inference, let alone that it is established. But, as a matter of pleading, I am satisfied that it is sufficient to provide a basis for the applicants’ case.

64 The particular pleading of the sixth and seventh applicants’ cases in Annexure A is likewise sufficient in relation to their individual claims. In each case there is pleaded:

(a) the identity of the child in relation to whom the applicant expressed a willingness to provide care;

(b) the time at which the child was removed from their parents’ care, and the nature of the care into which they were placed;

(c) the timing and nature of each applicant’s communications with the State in relation to the care of the child;

(d) the nature of any responses from the State;

(e) the fact of a failure to assess the applicant in relation to suitability to care for the child (and any reasons given for the decision not to perform such an assessment), or the time at which such assessment was conducted.

65 Those circumstances in Annexure A are then said to constitute a breach of section 9(1) of the RDA by reason of the matters pleaded in paragraphs 49B and 49C (although I would infer that there has been an inadvertent omission to include paragraph 49D in that cross-reference). I do not think that there is any real lack of clarity about how the pleading in Annexure A relates to the matters pleaded in paragraphs 49B to 49D. The specific matters pleaded in Annexure A are comfortably capable of being understood as instances of the generalised conduct identified in the main body of the pleading. I do not consider that the State should have any real difficulty in understanding the case that it is required to plead to.

66 To the extent that the State wishes to contend that the facts pleaded in Annexure A are explained by, or are the result of, the application of race-neutral decision-making tools, then that is a matter that can be pleaded in its defence. I am not, on this pleadings dispute, determining whether the applicants’ claims are correct; only whether they have articulated a case entitled to be heard and determined.

67 For these reasons, therefore, I am not persuaded that the pleading in paragraphs 49B to 49D (and the associated parts of Annexure A) provides a reason to refuse leave to the applicants to file their proposed amended pleading.

Section 46PO of the AHRC ACT

68 The second broad issue raised by the State in opposition to the applicants having leave to file their proposed amended pleading is that various paragraphs introduce claims that would result in non-compliance with section 46PO of the AHRC Act.

69 Subsection (1) of that section provides as follows:

If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

70 Subsection (3), however, says:

The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

71 The fundamental principles in accordance with which questions arising under section 46PO(3) should be approached in the context of representative proceedings was set out in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43]-[48] (Marshall, Rares and Flick JJ):

The purpose of s 46PO is to define and filter the cause of action it creates so that it will correspond, within the limits set in  ss 46PO(1) and (3), with the complaint terminated by the President of the Commission:  cp  Grigor-Scott v Jones (2008) 168 FCR 450 at 454 [18]-[20] per Emmett, Lander and Tracey JJ.  However, in construing how far s 46PO(3) defines and limits a complaint it is important to bear in mind that s 46PO itself contemplates that a complaint, and proceedings based on it, can be made by a representative party on behalf of persons entitled to proceed, after the complaint has been terminated by the President, in representative proceedings under Pt IVA of the Federal Court of Australia Act.

The precise time or circumstances of some particular occasion of unlawful discrimination that he or she allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission.  That is why s 46PO(3) is drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission.

Thus, a complaint can be made by a person seeking to represent, for example, aged, blind or deaf persons or persons suffering from a particular disability, and allege unlawful discrimination by the provider of a public service such as transport or education.  Such a complaint is unlikely to describe every instance of unlawful discrimination that may have occurred to many group members the subject of the complaint.  It is of the nature of representative proceedings that individual group members may only be informed of the existence of those proceedings well after their commencement.  Their individual experiences may fall within a more general or inclusory description in a complaint to the Commission.  However, the dates, times, places and precise circumstances each group member may instance in giving evidence in representative proceedings would almost never be given in any detail or at all, in a complaint to the Commission.   But, a person entitled to seek relief as a group member under ss 46PO(4) and (5) cannot be prevented from establishing that he or she is in fact a group member by relying on his or her experience, the exact detail of which was not given in a complaint of which he or she had no knowledge.

Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination.  In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility.  However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission.  As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”:  Travers [2000] FCA 1565 at [8].  His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading.  Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information:  90 FCR at 188B.  Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination:  see too Simplot 69 FCR at 94F-G.  In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3).  He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged:  Charles 105 FCR at 580 [39].

The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act.  It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility.  And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court.  Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”.  It provided in relation to, among other provisions, s 46PO:

“Court not bound by technicalities

46PR    In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms.  This section has effect subject to Chapter III of the Constitution.”

The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR:  Maghiar v Western Australia [2002] FCA 262 at [18] per French J.

72 As will be seen, the complaint that was made to the AHRC here, while lengthy, was not framed in the detailed and precise way that a pleading would be. In important respects, it was high-level and conclusory, and did not expose the precise (or sometimes any) basis upon which particular aspects of the complaint were made. That is not a criticism: the complaint was accepted as a valid complaint that complied with the requirements of the AHRC Act. I mention it because the question of compliance with section 46PO(3) cannot, particularly in such circumstances, be tested by a process of mechanical comparison between the complaint and the pleading sought to be filed. They are different documents, prepared for different purposes, and with different requirements. The assessment of whether the unlawful discrimination alleged in the proceedings is the same (or the same in substance), or arises out of the same (or substantially the same) facts, as was disclosed in the complaint must necessarily take into account those differences.

73 Relatedly, and also of relevance to the present application, is the fact that section 46PO(3) “does not prevent an amendment which does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices”: King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8 at [28] (Robertson J). Equally, under section 46PO(3)(b), it is permissible to “claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged”: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 at [39] (Katz J); see also, e.g., Wilson v Commonwealth of Australia (Strike-out and Further Particulars) [2026] FCA 91 at [35] (Hill J).

The Complaint

74 The final expression of the complaint (i.e., the form in which it was terminated) consisted of the complaint form dated 31 January 2024, Attachment A dated 12 August 2024, Attachment B dated 31 July 2024 and Attachment C dated 31 July 2024.

75 The complaint was expressed to be brought as a representative complaint on behalf of three classes of people, corresponding broadly to the Child Claim Group Members, the Parent Claim Group Members, and the Willing Carer Claim Group Members.

76 In Attachment A to the complaint form, the complaint in relation to section 9(1) of the RDA was expressed in the following terms:

The Complainants and the Class Members allege that the State of New South Wales Department of Communities and Justice (and its predecessors) (the Department) is in contravention of section 9(1) of the Racial Discrimination Act 1975 (the RDA) in decisions made and actions taken pursuant to the Children and Young Persons (Care and Protection) Act 1998 (and preceding legislation) (the CYPA) and the Children and Young Persons (Care and Protection) Regulation 2022 (and preceding regulations) in relation to:

a. their inquiries and/or investigation of; and/or

b. their removal of; and/or

c. their failure or refusal to restore or reunify;

First Nations children from or to their families based on their race and/or descent.

77 The complaint in relation to section 9(1A) of the RDA was expressed in the following terms:

The Complainants and the Class Members contend that the Department is in contravention of section 9(1A) of the RDA where the parents or one parent of a First Nations child or children (the family) were required to comply with a term, condition or requirement which was not reasonable having regard to the circumstances of the family and the family could not comply with the term, condition or requirement based on their race and/or descent.

The term, condition or requirement includes failing to meet the Department of Communities and Justice’s (the Department) views on:

a. housing and accommodation;

b. spousal or defacto relationships;

c. employment;

d. substance abuse;

e. risk factors generally;

f. completion of parental programs;

g. visitations; and

h. reunification.

78 Attachment A also referred to “policies and procedures which formed part of the Department’s decision-making processes”, and which were said to include forty named policies or procedures (or descriptions of groups of policies or procedures).

79 It was stated that the purpose of Attachment B to the complaint form was “to outline the discrimination complained of by the Representative Complainants” in the three classes.

80 The first applicant was the sole “Class A” complainant (which corresponds broadly to the Child Claim Group Members). Before articulating the particular circumstances relevant to the first applicant, the complaint said:

While some of the conduct set out below is particular to the Class A Complainant, the Class A Complainant further claims on behalf of those she represents, pursuant to s 46PB of the AHRC Act, that the conduct of the Department, purportedly under the CYPA, in relation to removal and placement of First Nations children, has been, and is based on race and/or descent within the meaning of s18 of the RDA.

The Class A Complainant claims that the Department’s conduct in child removal interventions, the related ongoing conduct and/or failures of the Department, has the same, similar, or related features of the conduct which occurred in their case …

81 The circumstances identified as relevant to the first applicant included that she was removed from the care of her parents shortly before her third birthday. It is said that, because of her young age at the time, she does not know what precipitated her removal. She is aware, however, that, at the time of her removal, she had siblings who did not live at home, her mother was pregnant with another sibling, and that her parents had struggled with substance abuse and had spent periods of time in custody.

82 Under a heading “Discrimination against the Complainant” certain “failures” of the State are identified, each of which are concerned with acts or omissions following the first applicant’s removal from her parents. The final paragraph in that section of the complaint, however, states:

The removal of [the first applicant], the ongoing conduct and/or failures of the Department were based on [the first applicant’s] and/or [the first applicant’s] mother’s race and/or descent. The removals and the ongoing conduct and/or failures of the Department were unlawful, contrary to sections 9(1) and 9(1A) of the RDA.

83 It may thus be observed, in relation to the first applicant, that while the focus of the matters described as “failures” was on the State’s conduct following removal, the complaint did expressly allege that her removal involved both direct and indirect discrimination on the basis of race and/or descent. Relevant to such an allegation is the fact that there was as much factual detail concerning the circumstances of the first applicant’s home prior to her removal as she was able to provide included in the complaint. That is consistent with the broad framing of the complaint in Attachment A (which also complained of the State’s conduct in relation to inquiries and/or investigations). There is, however, no clearly articulated argument made in relation to the first applicant as to why her removal (or related inquiries and investigations) involved direct or indirect discrimination. The fact, however, that such a complaint was made is undeniable.

84 The third to fifth applicants (along with another person) were identified as the “Class B” complainants (which corresponds broadly to the Parent Claim Group Members). A similar statement to that quoted above in relation to Class A was made about the individual Class B complainants making further claims on behalf of other persons “in relation to removal and placement of First Nations children”.

85 The circumstances in which the children of the Class B complainants were removed from their care is described in some detail. I will not attempt to summarise those accounts. It is enough to observe that a common theme is that the applicants were unaware, or unsure, at the time their children were removed from them why they were being removed. In all cases it is clear that the parents were eager to care for their children, or to have their children cared for by other First Nations people, and sought to make that happen.

86 The complaint sets out what are said to be the “failures” of the State in relation to each complainant. In relation to the period prior to the removal of their children, the following (or words to the same effect) is said:

Prior to the children’s removal by the Department, the Department failed to:

…

b.     adequately consider alternatives to removal;

c.    employ culturally safe and appropriate risk assessment tools involving family and community in assessing harm and participating in safety planning.

87 The failures of the State and actions of the parents identified in the period following the removal of their children included the following (or equivalent allegations):

From the time of the children’s removal by the Department, the Department failed to:

…

c.    take appropriate steps to reunite the children with [their parents];

…

From the time of the children’s removal, [their parents] tried to regain custody of the children. [The parents’] actions included but were not limited to:

a. complying with requests made by the Department;

b. undertaking parenting courses;

c. regularly and cooperatively engaging with the Department through Child Safety agencies;

d. domestic violence counselling courses (e.g. Managed Families);

e. family violence counselling.

88 It was then stated, in conclusion, in relation to each complainant that:

The removal of [the parents’] children and the ongoing conduct and/or failures of the Department were based on [the parents’] and/or [their] children’s race and/or descent. The removals and the ongoing conduct and/or failures of the Department were unlawful, contrary to sections 9(1) and 9(1A) of the RDA.

89 In relation to the complaints of the Class B complainants, the following matters may be observed:

(a) A clear focus of the complaint is the State’s decision-making in relation to the removal of children. There is an express reference to a failure to “employ culturally safe and appropriate risk assessment tools involving family and community in assessing harm”. That is consistent with the broad framing of the complaint in Attachment A.

(b) There is also a clear focus on the State’s decision-making in relation to the return of children to their homes. Again, this is consistent with the broad framing of the complaint in Attachment A.

(c) In neither case, however, is a clearly defined basis upon which the conduct and failures of the State are said to amount to discrimination contrary to the RDA identified. As with the Class A complainant, however, the absence of an articulated basis for the complaints does not undermine the clarity with which the fact of the complaints was expressed.

90 The sixth and seventh applicants were identified as the “Class C” complainants (which corresponds broadly to the Willing Carer Claim Group Members). A similar statement to that quoted above in relation to Class A was made about the individual Class C complainants making further claims on behalf of other persons “in relation to [the State’s] interactions with or treatment of First Nations people”.

91 The circumstances in which the Class C complainants interacted with the State in relation to the care or potential care of First Nations children is described. Under the heading “Discrimination against the Complainant” there is an articulation of the fundamental grievance of the claimants. The grievances expressed in relation to each applicant include:

(a) In relation to the sixth applicant:

(i) The State “failed to adequately consider and/or give weight to the placement stability and/or strength of the attachment of [the child] to [the sixth applicant] and/or her family”;

(ii) The State “failed to engage with [the sixth applicant] in any way or any adequate way with respect to facilitating [the child’s] connection to his Aboriginal family and culture while under the care of the Department”;

(iii) While the sixth applicant “made numerous attempts to provide for [the child’s] care and/or be involved in his cultural development and connection to his Aboriginal family”, including numerous attempts to deal with the State, her requests were “either not … met, or not … adequately met”.

(iv) The sixth applicant made numerous offers to have the child live with them, or to facilitate care by other First Nations people, but the State “failed or refused to facilitate” those arrangements.

(b) In relation to the seventh applicant:

(i) The seventh applicant was not contacted by the State for at least three months after she expressed a willingness to care for the child.

(ii) While the child was in the care of others, the seventh applicant “continued to self-advocate for her ability to care for [the child] and for her to be involved in his cultural development and connection to his Aboriginal family”.

(iii) Assessments were performed in relation to the seventh applicant by white caseworkers, who had limited interactions with her, and who made her children feel “very anxious”.

(iv) The State “failed to approve [the seventh applicant’s] application to be a carer for [the child]”.

(v) The State “failed to … engage with [the seventh applicant], [the child’s] kinship group and/or First Nations organisations for the purposes of (i) considering [the seventh applicant] and/or assessing her as a potential carer for [the child] [and] (ii) maintaining [the child’s] connection with his First Nations community, family, culture and traditional language”.

(vi) The State failed to “provide [the seventh applicant] and/or [the child’s] family, community or representative organisation of First Nations people an opportunity to assist and/or participate in placement decisions for [the child]”.

(vii) The State failed to “ensure that [the child] developed and maintained a relationship with his broader kinship network”.

92 In the case of both applicants, the complaint concludes by saying:

From the time of his removal, as a result of the ongoing conduct and/or failures of the Department, [the applicant] was unable to maintain [the child’s] connection with his Aboriginal community, family, culture and traditional language, and [the applicant] and her family lost the right to teach [the child] about his Aboriginal community, family, culture, Country and traditional language.

The ongoing conduct and/or failures of the Department was based on [the applicant’s] race and/or descent and was unlawful, contrary to sections 9(1) and 9(1A) of the RDA.

93 Overall, in relation to the sixth and seventh applicants, it may be seen that there is a clear complaint made about the failure of the State to engage appropriately with willing carers, and to approve willing carers to care for First Nations children who have been removed from their homes. Once more, however, there is no reasoning articulated as to why the conduct complained of constitutes unlawful racial discrimination.

Has there been non-compliance with section 46PO(3)?

94 The State contends that the following portions of the proposed amended pleading fall beyond the scope of content permitted by subsection (3):

(a) Paragraphs 16C to 16F, 21B and 30B: I have described this claim above. It is a claim brought on behalf of the Child Claim Group Members and Parent Claim Group Members alleging direct discrimination based on the mandated use of the Reporting Tools.

(b) Paragraphs 16P to 16S, 21E, 21EA, 30E, and 30EA: These are claims brought on behalf of the Child Claim Group Members and Parent Claim Group Members alleging direct discrimination based on the mandated use, and manner of use, of the so-called “Restoration Tools”. The Restoration Tools were decision-making tools used to make decisions about whether a child who had been placed in care should be returned to their home. The essential structure of the claim is analogous to the claim I have described in relation to the Reporting Tools (that is, the use of factors and risk determinants that correspond with the Relevant First Nations Social and Economic Factors, or otherwise an inference as to the manner in which the Restoration Tools were applied).

(c) Paragraphs 21GA, 21GC to 21GF, 30K, 30L to 30MA: These are claims brought on behalf of the Child Claim Group Members and Parent Claim Group Members alleging indirect discrimination based on the use of the Restoration Tools (and the Reporting Tools in the case of the Child Claim Group Members).

(d) Paragraphs 16T to 16W, 49A, 49AA, 49E and 49EA: These are claims brought on behalf of Willing Carer Claim Group Members alleging direct discrimination based on the mandated use, and manner of use, of the so-called “Carer Assessment Tools”. The Carer Assessment Tools were decision-making tools used to make decisions about whether to assess or approve persons to act as carers for children who were removed from their home. The essential structure of the claim is analogous to the other direct discrimination claims I have described.

(e) Paragraphs 49F, 49G, 49I, 49IA and 49K: These are claims brought on behalf of Willing Carer Claim Group Members alleging indirect discrimination based on the use of the Carer Assessment Tools.

95 The State submitted that:

The essence of the discrimination alleged in the Complaint focuses on the Department’s purported failures to, firstly, take reasonable steps to maintain the connection of removed children with their family and First Nations culture; and secondly, provide First Nations children, families and potential carers with adequate support (including support that may have prevented the removal of children in the first place). The discrimination described in the Complaint is not based on the application of decision-making tools, much less the application of decision-making tools said to be inherently discriminatory.

96 The State emphasised that there were only two contexts in which references to decision-making tools in the complaint are found. The first was the non-exhaustive listing in Attachment A of policies and procedures that formed part of the State’s decision-making processes. The second was the contention, in Attachment B in relation to the Class B complainants, that the State had “failed to … employ culturally safe and appropriate risk assessment tools involving family and community in assessing harm and participating in safety planning”. The State submitted:

The decision-making tools are described in the Complaint as not “culturally safe” or “appropriate” but there is no allegation in the Complaint that the tools themselves are discriminatory. The Complaint does not allege that the tools incorporate “factors and risk determinants” which are said to disproportionately affect First Nations peoples. Policies and procedures that are said to “form part of the Department’s decision making processes” are listed on page 9 of Attachment A, but there are no specific complaints made in respect of those policies and procedures.

Attachment B of the Complaint barely mentions decision-making tools at all. To the extent that it does so, it does not raise any issues about such tools other than in the context of investigation and removal. It does not raise any matters in relation to tools in the context of reporting, restoration or the assessment of carers. At its highest, the Complaint may be understood as addressing the use of the Investigation and Removal and Placement Tools (as defined in the proposed FASOC). But it does not address the Reporting, Restoration and Carer Assessment Tools as pleaded.

97 Ultimately, the State submitted that:

[T]he nature of the discrimination described in the proposed FASOC has a completely different legal character from the discrimination raised in the Complaint. Whereas the Complaint concerns acts or omissions in service provision, the [F]ASOC focuses on structural bias embedded in decision-making tools. These are not merely different particulars of the same conduct; they are qualitatively distinct allegations.

98 Ultimately, I do not accept the State’s submissions. That is for the following reasons:

(a) The State has construed the complaint far more narrowly than is justified. It is plainly not the case that the complaint is limited to failures to “maintain the connection of removed children with their family and First Nations culture” and to “provide First Nations children, families and potential carers with adequate support (including support that may have prevented the removal of children in the first place)”. I have summarised the relevant aspects of the complaint above, but, in brief:

(i) In terms, the complaint was stated to include discrimination by the State in its decisions and actions in relation to “inquiries and/or investigation[s]”, “removal of” First Nations children, and failures or refusals to “restore or reunify” First Nations children to their families.

(ii) The complaint in relation to the first applicant expressly alleged discrimination in relation to her removal, and included detail in relation to the circumstances of her home before she was removed.

(iii) The complaint in relation to the third to fifth applicants (and the other Class B complainant) expressly alleged discrimination in relation to the decision-making concerning removal, and, in particular, the failure to use appropriate risk assessment tools. It also squarely raised discrimination in relation to decision-making concerning returning removed children to their home. Again, a substantial amount of factual information was included relevant to those complaints.

(iv) The complaint in relation to the sixth and seventh applicants allege discrimination in relation to the failure to engage with, and decision-making concerning the assessment and approval of, willing First Nations carers. Once again, the factual information supplied was extensive.

(v) It was expressly recorded that the decision-making processes about which the complaint was made were comprised of “policies and procedures”, of which a non-exhaustive list was provided.

(b) That summary equally shows that it is not the case that the “discrimination described in the Complaint is not based on the application of decision-making tools”. It is true, of course, that the complaint is not expressed in terms of the use of “Reporting Tools”, “Restoration Tools”, “Carer Assessment Tools” or the like. But the complaint plainly attacks the decision-making of the State, and identifies that various manuals, policies, procedures and the like (which are non-exhaustively listed) “formed part of the Department’s decision-making processes”. It is difficult to see how the complaint can be interpreted as anything other than an attack on decisions made in accordance with those policies and procedures. It is true that the complaint does not say in terms that “the application of decision-making tools [was] inherently discriminatory”. But the complaint did allege that (at least in relation to the Class B complainants’ complaint concerning decision-making leading up to removal) the State’s risk assessment tools were not “culturally safe and appropriate”, which, in the context of the complaint, must be an allegation that they were inherently discriminatory. And, more generally, the complaint simply did not descend to a level of detail sufficient to expose the precise basis upon which it was contended that the State’s decision-making processes were discriminatory. The attack that is now made is certainly encompassed by the general way in which the complaint was framed.

(c) I do not think that it matters that the complaint did not articulate the precise basis upon which it is alleged in these proceedings that the application of the State’s decision-making tools involves unlawful discrimination. The question is whether the unlawful discrimination alleged in the application is the same (or the same in substance) as the unlawful discrimination that was the subject of the complaint. The absence of detail in the complaint does not give the discrimination it alleges a different character to that alleged in these proceedings; they are consistent with one another, albeit that one is described with a specificity that the other lacks. The discrimination alleged in the complaint was broad, and that breadth cannot be ignored in construing its scope.

(d) In any event, even if the unlawful discrimination alleged in the complaint is not the same (or the same in substance) as the unlawful discrimination alleged in these proceedings, it certainly arises out of the same (or substantially the same) acts, omissions or practices. The relevant “acts, omissions or practices” of the State must be the use of the policies, procedures or tools themselves in the factual circumstances in which they were used. Matters such as the correlation between factors and risk determinants used in those tools and the Relevant First Nations Social and Economic Factors are not a relevant “act, omission or practice” of the State. So understood, it is clear that the fact that the applicants have, in these proceedings, articulated the basis upon which the conduct of which they complain is discriminatory, does not mean that they have failed to comply with section 46PO(3). These proceedings represent, at most, a new conceptualisation of the same complaint that was made to the AHRC.

99 For those reasons, I do not accept that these proceedings involve any breach of section 46PO(3) of the AHRC Act, and, accordingly, I would not refuse to grant leave to the applicants to file their proposed amended pleading on that basis.

Other Matters

100 There were a range of other complaints that the State made concerning disparate aspects of the proposed amended pleading in the course of its submissions. For the most part, I understood those matters to be gripes, rather than bases upon which it was suggested that the applicants should be denied leave. The principal complaints of this character, I think, were as follows:

(a) It was submitted that the pleading (for example in paragraph 21F) of the human rights and fundamental freedoms that it was said the discrimination had nullified or impaired the recognition, enjoyment or exercise of, was inadequate as it did no more than make references to particular articles in various international conventions. At the most, I consider that any difficulty that the State may have in understanding the applicants’ case in this regard could be cured by a request for particulars. It follows that I would not refuse leave on this basis.

(b) The proposed amended pleading relevantly defined the Group Members as First Nations people who were subject to actions taken by and decisions made about them pursuant to the CYPA or the Children (Care and Protection) Act 1987 (NSW) (as applicable) during the period 5 March 1992 to 12 August 2024. The period of the complaint made to the AHRC, however, was stated to be “5 March 1992 … to the date the complaint is lodged”, which was 31 January 2024. Although the complaint was amended after that date (with the final amended document being provided on 12 August 2024), nowhere in the amended documents was it stated that the period of the complaint was being extended. (The State argued, in any event, that it was not possible to extend the period of the complaint). The applicants did not appear to dispute this aspect of the State’s complaint. I am satisfied, therefore, that the proposed amended pleading goes beyond the bounds permitted by section 46PO(3) to the extent that it incorporates claims arising after 31 January 2024. It follows that any proposed amended pleading should limit the temporal period of the claim to between 5 March 1992 and 31 January 2024.

(c) The State complained that the legislation pursuant to which it acted in making decisions about the care of children (that is, the CYPA or the CCPA), while mentioned at the beginning of the proposed amended pleading, was not then acknowledged or addressed in the context of the pleaded contraventions. This was said to be important, as I understood it, because, at least in the context of the CYPA, there were provisions in the Act that obliged the State to take into account various matters in relation to First Nations people. Ultimately, though, I did not understand it to be suggested that this was a pleading defect, as opposed to a matter that the State would contend was relevant to the question of whether the pleaded conduct in fact amounted to a contravention.

(d) The State complained about another aspect of the pleaded definition of Group Members, being that part of the definition of each sub-group was that particular conduct had occurred in relation to them (for example, removal, or investigation, or a failure to assess and so forth) where “a cause of such [conduct] was an act of unlawful discrimination as alleged in this Further Amended Statement of Claim”. The State contended that various issues arose in this regard, none of which I regard as a sufficient reason to refuse leave to file an amended pleading with the groups defined in this way. The most strenuous opposition was mounted based on observations made in Perera v GetSwift Limited (2018) 263 FCR 1; [2018] FCA 732 at [78]-[81] (Lee J) about the undesirability of incorporating into the definition of the group a criterion that turns on the resolution of a central issue in the case. Having regard to the decision of the Full Court in King v GIO Australia Holdings Ltd [2000] FCA 1543 at [11] (Wilcox, Lehane and Merkel JJ), I am not satisfied that there is any inherent problem with the way that the group has here been defined.

Conclusion

101 For the reasons I have given, I would not grant leave to the applicants to file their proposed amended pleading in its current form. In most respects, where I have indicated that I would not grant leave to include a particular paragraph, I have indicated that it may be possible for the applicants to cure the defect I have identified with further amendments. In other respects, I have indicated the changes that would be necessary in order for me to grant leave. In those circumstances, I will direct the parties to confer in relation to a timetable by which the applicants serve on the State any proposed further amended pleading that they may wish to seek leave to file, and consequential steps. The parties should also confer to agree orders necessary to dispose of the various interlocutory applications that remain outstanding, but which ought to be capable of consensual resolution in accordance with these reasons. Insofar as costs is concerned, my preliminary view is that each side has enjoyed a measure of success, and that both parties have cooperated reasonably in relation to the identification and resolution of issues, such that the appropriate order is that the costs of this (and related) interlocutory applications should be costs in the cause. But in the event that any party wishes to contend for a different outcome, I will make orders to facilitate that.

Associate:

Dated:    26 June 2026

SCHEDULE OF PARTIES