New bill aims to end the removal of First Nations’ children

November 2, 2021
Survival/Invasion Day rally in Brisbane on January 26. Photo: Alex Bainbridge

The stolen generations never ended: 24 years after the Bringing them Home Report, First Nations children are still being stolen from their family, culture and Country — and at an increasing rate.

A First Nations child is 11 times more likely to be removed today than a non-First Nations child. This colonialist approach continues to cause irreparable harm to both children and communities. It is the reason that First Nations children are over-represented in the care and protection system. Children who have been removed from their families are more likely to enter youth justice supervision and are then more likely to be incarcerated as adults.

The New South Wales Greens are proposing a bill to change the current racist and punitive child protection laws. The Children and Young Persons (Care and Protection) Amendment (Family is Culture Review) Bill 2021, also known as the Family is Culture Review Bill, seeks to prohibit adoptions and ensure self-determination in the care and protection of First Nations children and young people.

The bill is based on recommendations from the 2019 Family is Culture Review Report, led by Cobble Cobble woman Professor Megan Davies, a constitutional lawyer. It was a damning indictment of the child protection system and published 125 urgent reform recommendations.

By contrast, former Prime Minister Kevin Rudds 2008 apology to the Stolen Generations, which did not engage grassroots First Nations communities, did not promote any significant reforms.

The Family is Culture Review Report was initiated by First Nations mothers and grandmothers and makes for harrowing reading. It describes how removing children perpetuates intergenerational trauma and harms communities.

It also demonstrates the ways in which racist policies are ingrained in the child protection system. For example, Family and Community Services (FACS) removes First Nations children from their families as the default position, rather than deploy a less harsh intervention as laid out in the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The report describes the intersection between domestic violence, a lack of housing and forced child removals. “Families involved in the child protection system may be unable to access to safe and affordable housing. This issue often intersects with domestic and family violence because a child is often removed when a woman remains with an abusive partner and is deemed by the department as being non-protective or ‘unable to keep her child safe’.

“However, a reason why women cannot leave an abusive partner may be because the woman does not have anywhere safe to go should she leave. The child is then at risk of removal for reason of homelessness should she leave or if she stays the child is at risk of removal due to exposure to violence.”

It revealed that instead of providing safe housing for First Nations women and children in crisis, FACS just remove the children. A “high proportion” of First Nations children have been put into care at birth, or just after birth, and many babies have been removed without due process.

First Nations children with disabilities are particularly disadvantaged, the report said. This is because they are more likely to be taken from their families by FACS, that wrongly assumes their parents are unable to care for them.

Conversely, it found that parents with disabilities often had their children removed, with FACS assuming they were unable to provide adequate care.

A number of submissions recounted abuse, including sexual abuse, endured by First Nations children while in protection. For example, Redfern Legal Centre reported many children suffer “significant and horrific abuse” while in Out of Home Care (OOHC).

Overall, the report found “pervasive non-compliance” with internal rules and regulations among OOHC workers and a lack of accountability and transparency in the system.


Although the report was commissioned by the NSW Coalition government in 2019, it said it will not consider the findings and act on them until 2024.

Greens MP David Shoebridge told Green Left that this is unconscionable as it will “commit another generation” to the irrevocable harm caused by child removals. The Greens’ Bill “makes good” on commitments made to First Nations groups, he said, particularly Grandmothers Against Removals, Aboriginal Legal Services, Jumbanna and AbSec among others.

The Bill prohibits First Nations children from being adopted. Prior to former Family and Community Services minister Pru Goward’s 2018 law to legalise forced adoptions, there had been a ban on such adoptions. If the bill becomes law it will reinstate this ban.

The Bill acknowledges the importance of family, culture and Country to First Nations people and seeks to make sure families, Elders and community groups are the central decision-makers involved in the care and protection of children.

If adopted, the following definition of self-determination will become law: “Self-determination means the collective right of Aboriginal communities and Torres Strait Islander communities to freely pursue their economic, social and cultural development, and develop and implement culturally appropriate processes, services, supports and frameworks that engage and empower Aboriginal children and families”.

This will be backed up by practical measures, such as requiring the Children’s Court to actively apply the self-determination principle.

Shoebridge acknowledged this would only be a “first step” towards self-determination, but he regards First Nations people taking control over this decision as very important.

Support services

The bill aims to mandate support services, such as decent housing and medical services, so that caseworkers’ primary goals are to provide early intervention and assistance to families, rather than remove a child. Shoebridge said it was wrong that children were being removed from their mothers just because they lacked adequate housing — itself a symptom of colonial and racist policies.

The bill also requires judicial officers understand the irreparable harm caused by child removals as a starting point in any court process. Shoebridge said this element was aimed at changing the “mindset” of the courts.

It also aims to make the Children’s Court more accountable and transparent. The bill would prevent the Court from making a care order unless approved by an Aboriginal Community Controlled Organisation in consultation with a community representative.

The bill will also hold the government to account by legislating that the relevant minister report twice yearly to parliament on “actions taken” to implement “programs and strategies that promote self-determination”.

Shoebridge said the Greens invited public feedback. The bill will be tabled before the end of the parliamentary year. If it becomes law in NSW, it could be a model in other states and territories, providing there is support from First Nations communities.

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