Failure to recognise kinship at heart of ongoing discrimination

18 June 2026   

It is a shameful reality of our nation’s story that Australia’s Aboriginal and Torres Strait Islander peoples have and do face wide-ranging discrimination on multiple levels. From populations decimated by diseases introduced by British settlers – and by major, disastrous conflicts with those settlers who lacked any understanding of the Indigenous peoples’ connection to their traditional lands; the refusal to acknowledge First Nations people as part of the Australian population, give them voting rights or fully include them in the census until the 1967 referendum; to the forced removal of their children, The Stolen Generations, based on European presumptions of what was best for their welfare and the subject of the Bring Them Home Australian Royal Commission in 1998; discrimination has been rife throughout our history since the arrival of the First Fleet.

 Inequalities still exist today in multiple facets, arguably most prevalent in education, employment outcomes and other economic terms; and in poor health outcomes, higher suicide rates and a statistically shorter lifespan than non-Indigenous Australians.

 Those poor outcomes are due in no small part to discriminatory treatment in a range of health settings, as examined in the 2021 NSW Upper House inquiry into regional, rural and remote (RRR) healthcare. Submissions to the inquiry included that from the National Justice Project in honour of all First Nations people who have and still do experience discriminatory treatment resulting in devastating consequences. Their submission included the case of pregnant 27-year-old Wiradjuri woman, Naomi Williams, for whom that discrimination ended in the death of her and her unborn child in January 2016 from an easily treatable case of septicaemia. The three-year coronial inquest into the death of Naomi Williams confirmed her death was the result of systemic racism, prejudice and culturally unsafe treatment within the healthcare system. Regretfully, this is far from an isolated incident.

Grief resulting from the death of a family member is known in Aboriginal culture as Sorry Business, and cultural protocols instruct the way it is recognised. The burden of grief can be overwhelming for Aboriginal and Torres Strait Islander communities, who are culturally oriented to their extended families and their connection to Country.

While death and grieving in general is treated differently by First Nations individuals, preventable deaths, in particular, need to be handled with great sensitivity. The concerns of and consequences for the extended families of these victims need to be heard, not swept under the carpet, as has been the case with Aboriginal deaths in custody over the last four decades. 

While poor outcomes and discrimination in health settings are widely acknowledged, a glaring issue remains unaddressed by our legal system in relation to these preventable deaths – that of kinship principles and their impact on the victim’s extended family.

Section 30 of the Civil Liability Act 2002 (NSW) governs which individuals can bring cases following preventable deaths. As it currently stands, a key legislative provision is that only ‘close family members’ of the victim can be recognised. Problematically, determination of who is a close family member is based entirely on a Eurocentric definition, wholly dismissing the clearly recognised cultural differences between Aboriginal and Anglo-Australian kinship structures. Aboriginal children are raised as a part of an extended family and community, rather than as individuals. Kinship systems are a foundational imperative of First Nations culture, and there is express statutory and judicial acknowledgement of how critical they are to the preservation of Indigenous cultures. The emotional connections and interdependencies embodied in these kinship structures are relevantly indistinguishable from those of the Anglo-Australian nuclear family.

While the differences in kinship structures have long been recognised by Royal Commissions and Commissions of Inquiry, subject to close and ongoing scrutiny by Law Reform Commission Reports and academic research and publications, they remain open to interpretation in respect to civil liability.

In Indigenous kinship structures, the love, support and close personal ties of an aunt or uncle who has taken on parental duties are essentially indistinguishable from that between a child and their biological parent. Likewise, the bonds which form between cousins may be as intrinsic, or more so, than that of siblings. As such, they should be afforded the same level of protections and access to claims of damages for the injury, loss or death of a victim with whom they share a relationship akin to that of a Eurocentric immediate family.

The current interpretation of who constitutes a ‘close family member’ is determined through an Anglocentric judicial lens. Unintentional cultural biases come from white privilege, and the values and belief systems of judges may lead them into an interpretive framework of which they may be unaware.

Aboriginal kinship systems have long been recognised as critical in the way the law in NSW operates upon Aboriginal families and communities. Addressing the issue of what constitutes a close family member in relation to civil liability cases will be an invaluable step in opening the judicial mind to the consequences of their own biases in how they attribute meaning.

If we are to ever achieve reconciliation, addressing all levels of discrimination and acknowledging the grief of First Nations people and the way in which they express that grief must be achieved.  

 The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.

Learn how you can get involved and contribute an article.