by Antonio Buti
She shrugs aside this depressing thought and pens a letter to the Department of State Aboriginal Affairs. ‘Dear pitiless uncaring bureaucratic machine, will you please send …’ No, she had better not. She starts again: ‘Dear Sir or Madam, I respectfully request copies of the files held by the former Aborigines Protection Board and minutes of their meetings in which any decisions were made with respect to Bruce Trevorrow/Lampard in the 1950s and 60s.’
This is on 14 November 1995. She wonders whether uncaring bureaucratic machines have a Christmas holiday mode and whether she will receive a reply before 1996.
Ten days later, she has her answer. The chief executive of the Department of State Aboriginal Affairs, a Mr Rathman, has signed a letter prepared for him by one of his officers, seeking further information from Richardson. Specifically, the Department wants to know the nature of her investigations and ‘the purpose of the information’ to be copied from the archives. Reasonably, and logically, the bureaucratic machine wants to know why she wants it. So on 20 December, Richardson writes back to Rathman, ‘Mr Trevorrow has instructed me to act on his behalf in relation to the question of his separation as a child from his family and we are in the process of assisting him to prepare information to be submitted to the National Inquiry.’ Chagrined, she chides herself for not having put this perfectly reasonable preface to her request in her first letter.
17 January 1996: another letter prepared by another Department officer and signed by Rathman. Joanna reads, ‘Dear Ms Richardson: The volumes of minutes of the Aborigines Protection Board held by State Records in relation to the years 1957–1960 to which you have requested access do not exist.’ But, more promisingly, ‘However in regard to your second request for access to the volumes of correspondence which related to Minutes of the Board entitled “Aboriginal Affairs Correspondence File (Letters Received) 1866–1968”, permission is given.’ This is on the basis of certain conditions: ‘1. No documents or materials are removed or altered by the SA Museum in the process of your investigations; and 2. No information regarding the names of persons alive or deceased should be disclosed or used in documentation without permission of the person who is named or an authorised person able to give such information; and 3. If copies of documents are required, Mr Andrew Wilson, Aboriginal Project Officer of State Records, will copy the documents and you will be charged accordingly for the copies.’
Richardson is cautiously optimistic. It is disappointing that the minutes she wants no longer exist, but at least there is some documentation that might provide fruitful information as she seeks to piece together a documentary framework around Bruce’s story. Nevertheless, she is keeping her optimism in check until she lays her eyes and hands on the archival material.
Soon after Rathman’s green light, Richardson, with her authority to act for Bruce in hand, along with a copy of Rathman’s letter, arrives at the State Library, which houses the State Records of South Australia. She always enjoys visiting the State Library on the corner of North Terrace and Kintore Avenue, full of books and graced with old-style charm. She will be a frequent visitor to the State Records office over the next few months, examining Aborigines Department files in the hope of finding the missing pieces of Bruce’s life story. She reads files containing documentation on various aspects of fostering Aboriginal children, Crown Law opinions, the power of the Aborigines Protection Board to remove children from their parents, and a draft bill for amending the Aborigines Act 1934–1939. She pulls out the documents she thinks will be relevant to Bruce’s story and may be legally significant, and copies them.
‘Now what?’ Richardson asks herself as she contemplates what more needs to be done and whether there is merit in instigating action against the State of South Australia. Layton’s legal opinion was not a ringing endorsement to pursue legal action. Then again, Layton did not have the documentation that Richardson now has. Yes, she decides, her investigative work has borne fruit.
More work needs to be done. First, the documentary evidence needs to be carefully examined. Richardson dearly would like to employ additional staff so she can devote more time to Bruce’s case. But extra funding is not forthcoming, at least not for the foreseeable future. And what about precedent? There is a paucity of legal cases in the area. Only two cases have enough in common with Bruce’s cause of action to arouse her interest.
There is the Williams case, which, although tried in a different jurisdiction, did consider issues that are relevant to this matter. The Supreme Court of New South Wales has dismissed Joy Williams’ action; Richardson will be bringing this action in South Australia. She wonders whether she can distinguish Bruce’s case sufficiently to negate the elements upon which Justice Abadee had based his dismissal. She is thinking especially about His Honour’s comment that the actions of the authorities need to be assessed against the standards of that time. Are standards the same as values, she wonders? No, she decides, they are not. Standards can change according to what is affecting community thinking at a given time. Values, on the other hand, are innate, deep-seated and enduring. They took baby Joy away from her mum in 1942. They stole Bruce in 1958. The basic human value that it is wrong to steal a baby from its mother’s arms remains true even when, according to the purported imperatives of the moment, community standards might override it. ‘That,’ she thinks, ‘must be my moral starting point.’ Then she will argue the law point by point, but always against that criterion. Defending that moral ground will be easy for Joanna the mum. ‘Joanna, warrior woman,’ she thinks with a wry smile. But a trial is a trial, and only hard work—and lots of it—will ensure that she gets the law part right. Practically, she decides to put that part to one side until after the Williams appeal. Apply the law to the facts, they drummed into her at law school. First, then, she must stay focused on getting all the facts.
Then there are the Kruger and Bray cases, which were argued concurrently before the Full Court of the High Court in mid-February 1996.12 These are Northern Territory cases against the Commonwealth, arguing constitutional issues. Neither Richardson nor Layton thinks the cases are relevant to Bruce’s claim against the South Australian Government, and both think the arguments are more wishful thinking than cogent legal arguments. They agree to keep an eye on them, however. In the event, when the High Court hands down its decision in July 1997, it substantiates their scepticism.13
Another light appears at the end of the long tunnel that has been the year 1996. The hearings of the National Inquiry ended in Sydney in the early days of October and the final report has been drafted. By the time the 680-page report, titled Bringing Them Home, is presented on 5 April 1997, the government has changed. Keating and Lavarch are gone and there is a new Commonwealth Attorney-General, Daryl Williams QC. This is a tumultuous time in the politics of Aboriginal affairs. The High Court had handed down its decision in the Wik case on 23 December 1996, finding that native title could coexist with pastoral leases.14 Amid uproar in the outback, the Howard government vowed to protect leaseholders, with Howard’s deputy, National Party leader Tim Fischer, calling for ‘bucket loads of extinguishment’ of native title. In late April the government announces its ‘Ten Point Plan’ watering down native title rights, causing outrage among Aboriginal groups and their supporters.
Sir Ronald Wilson delivers the National Inquiry report to Attorney-General Williams in this tense atmosphere. This is a report the current government did not want and did not call for. It is not in a receptive mood. The irony of Daryl Williams accepting the report will be poignant for Lavarch. He would be aware of Williams’ strongly expressed view that, given the separation of powers and the maintenance of an independent judiciary under the Constitution, it was no longer appropriate for the Attorney-General, as a member of the Executive, to defend the judiciary from political criticism.15 How much less likely would he be to defend the commissioners—especially Sir Ronald, the public face of the National Inquiry—against the criticism that the government and others would level against them in wantin
g to disown and discredit the report?
The report states that from at least the mid- or late nineteenth century, there was a policy of forcible separation adversely affecting Aboriginal people across Australia in all states and territories. It argues that, in many cases, forcible separation resulted in deprivation of liberty, violation of parental rights, abuses of legislative and administrative powers, breaches of guardianship obligations and breaches of human rights. The report goes further to argue that the history of separation equalled genocide. Specifically, the laws and policies promoting the separation of Aboriginal children aimed to destroy, or had the effect of destroying, both the Aborigines as a racial group and their Indigenous culture. The report recommends that the Commonwealth, state and territory governments and relevant churches provide a reparation package to those separated and their families and communities.
Bringing Them Home is tabled in the House of Representatives on 26 May 1997, the opening day of the Australian Reconciliation Conference being held in Melbourne. In a premeditated action, some of those in the auditorium turn their backs on the Prime Minister, John Howard, as he commences his speech. Others jeer and heckle as he defends his Ten Point Plan and refuses to make, or commit the Commonwealth Government to making, an official apology or to provide compensation to the so-called Stolen Generations.16
The release of Bringing Them Home initiates a wave of political and public debate about the merits of the report and its findings, a debate that would continue for years. Two of the more controversial issues associated with the report concern the recommendation for compensation and the finding of genocide. Wilson himself, some years later, admits that using the term ‘genocide’ sidetracked the debate. In an interview for the Bulletin magazine in 2001 he said, ‘No one challenges that dreadful consequences followed these [removal] policies. Once you latch onto the term “genocide” you are arguing about the intent and we should never have used it … It gave the government an out because the first thing they could do was to reject the report on its finding of “genocide” and that enabled it [the Howard government] to come out fighting … If there hadn’t been that finding then what would they have had to complain about, to criticise?’17
Richardson knows she needs to crank up the hours on Bruce’s file. She is not surprised to learn that, although Bruce was aware of the release of Bringing Them Home, he did not follow or understand the nuances or the legal and politic debates that followed.
The year 1997 for Bruce follows a similar pattern to many of his adult years. He is still frequently in trouble with the law, usually for disorderly behaviour. For instance, Richardson will hear about an incident on 22 February when he deliberately stepped in front of a moving car, forcing it to stop suddenly. He subjects anyone close by who tries to intervene in his behaviour to abuse and threats of violence. She knows Bruce is unlikeable, but she also understands why. She learns to close her mind to these increasingly frequent disagreeable displays and to focus on her lawyer’s task of helping him in his claim for compensation.
Being unwell is another constant in Bruce’s life. He spends some time in Royal Adelaide Hospital receiving treatment for his nervous and agitated condition. He is a frequent and regular visitor to Murray Bridge Clinic, Murray Bridge Hospital and Meningie (Coorong) Medical Centre, trying in vain to find an answer to his depression, agitation, stress and aggression. The answer when it comes is no less depressing. On 22 September 1997, Dr Kerrigan at the medical centre diagnoses Bruce as having organic brain syndrome.
Nevertheless, when Richardson visits Bruce at his Meningie home on 3 July 1997 for a prearranged appointment, he listens attentively, although she can see he is stressed and anxious. He reads some of the documents but spends more time listening to her than reading. She needs to progress slowly. The documents are part of a 300-page bundle that she received in late March in response to her follow-up Freedom of Information application to the Department for Family and Community Services on 6 February 1997. Although the documents contain information about where Bruce lived as a child and with whom, and about the various medical and related experts he visited, what is most revealing is what they do not contain.
They do not contain any document of, or even reference to, his parents’ consent to place him in foster care. In other words, the Department had no consent from Thora or Joe. Further, there is no evidence that the Aborigines Protection Board or officers from the Aborigines Department ever sought consent from either Joe or Thora for their actions. There is no documentation of, or reference to, any court order for the placement of Bruce with Mrs Davies. What’s more, there is no evidence that any of the authorities sought such a court order. Richardson is not surprised, but is extremely angry, that the files show the Aborigines Protection Board did not seek details about Bruce’s circumstances prior to placing him with Mrs Davies. They only did so on 15 January 1958, the day the Secretary of the Board signed the letter written by Mrs Angas to Sergeant Liebing at the Meningie Police Station in which she asked why Bruce ended up at the Adelaide Children’s Hospital. That was the first time Angas had asked where Bruce’s mother was during the time he was in hospital.
There is a lot for Bruce to take in but Richardson, confident that he understands most if not all of what she tells him, continues. She shows him the text of a letter she read and copied at the State Records office. This document will make crystal clear to Bruce the enormity of the government’s wrong. Written by the Crown Solicitor in 1949, the letter casts grave doubt on the legality of Bruce’s removal from Joe and Thora. As he reads, the kitchen in Bruce’s home becomes silent. It is a dreadful silence, into which only the tortured breathing of a man with smoke-ravaged lungs intrudes.
Bruce sits, staring fixedly at some invisible mark on the kitchen floor. Then, slowly, he raises his eyes and looks into the distance, as though expecting someone to come into the kitchen. He turns towards Richardson but his eyes remain focused on a distant something beyond her. ‘The government took me away from my family. I know they should not have done that.’ He says this softly, sadly.
Richardson absentmindedly fingers the Crown Solicitor’s letter. Her focus, too, is elsewhere. ‘No Bruce, they should not have done it. And, Bruce,’ she pauses for just a heartbeat, ‘they know they broke the law.’ She doesn’t need to read the letter again. The salient point of it is seared into her brain. The Aborigines Protection Board did not have the power to take Bruce from his family.
Dated 25 July 1949, written by Crown Solicitor Hannan to the Attorney-General, the letter is categorical. Section 17 of the Aborigines Act does give the Aborigines Protection Board the power ‘in certain circumstances’ to have an Aboriginal child without the consent of the child’s parents remain within a reserve or Aboriginal institution. Implicit in that qualification is the need for the circumstances in each specific case to be spelled out. Nobody had bothered to consider that essential requirement in Bruce’s case. But, and this is the crux of the letter, ‘These powers, however, are of a general nature and of themselves are not, in my opinion, specific enough to authorise the removal of aboriginal children from their families.’
Richardson also has a later letter confirming that advice. This one, dated 13 August 1954, is written as a minute to the Attorney-General from the Crown Solicitor, Mr Chamberlin. She hands it to Bruce. He looks at it but she can’t tell whether he actually reads it. He hands it back without comment.
‘Bruce,’ she says, ‘we are going to sue the State on your behalf.’ Bruce offers no comment but she knows that, for both of them, there is no turning back.
Back in Adelaide, Richardson holds a conference with Layton. Their first step must be to file a statement of claim in the Supreme Court of South Australia. Layton, the QC, is eager to commence drafting it but must first deal with a number of court hearings she has pending. They both know better than to rush into filing a claim they have not presented convincingly.
Because it is the first pleading to the Court, they must show that a cause
of action exists according to law. They must show how Bruce (as plaintiff ), the facts that he will allege and the relief that he seeks from the Court are connected. If the Court does not believe all those elements are present, it may strike out the statement of claim and summarily terminate the action. The statement cannot plead evidence—that is what the trial is for. All claims must be relevant, logically and concisely stated, and they must state all material facts essential to the cause of action in summary form. Importantly, they must do this to accord with the rules of pleading. The point of this is that, in the cause of justice, the Court must ensure that the defendant, the State of South Australia, knows exactly what case the plaintiff will make in court. Only with that knowledge can the defendant prepare their defence.
Layton and Richardson talk about the possible causes of action, with negligence and breach of fiduciary duty the focus of much of the discussion. The archival documentation that Richardson has uncovered also leads them to other possibilities, including unlawful removal and denial of procedural fairness. With so much to do, 1997 passes in a blur and, come the new year, they still have not written the statement of claim. Layton chips away at it until finally it is done.
On Monday 1 June 1998, with a slight morning chill in the air to announce the arrival of the first day of winter, Richardson walks the few blocks from the ALRM office to the Registry of the Supreme Court of South Australia. She walks up to the desk. They know her there—she is on first-name terms with some of them after so many years, so many trials. The clerk at the counter greets her with a smile. With a mixture of excitement and apprehension, Richardson slides the document over the counter.
