by Antonio Buti
As Bruce had intuited he would be after the trial, and after this general apology to the Stolen Generations, he is again on his own, exactly where he has been since Christmas Day 1957.
He is drifting towards sleep again, his thoughts are jumbling, one into the other. He is with his Ngarrindjeri family, on the banks of the Coorong. His sister is calling, ‘Brucey’. Dad is coming up the track from work and he, baby Brucey, is nestled in his mother’s arms.
It is half past four on Friday afternoon, 20 June 2008.
AFTERWORD
The Trevorrow case remains the only successful case brought by a member of the Stolen Generations in Australia. The original decision by Justice Gray survived an appeal to the Full Supreme Court of South Australia, though the Full Court did disagree on some of his findings, namely that Bruce had been wrongfully or falsely imprisoned. It also disagreed that there had been a breach of fiduciary duty by the State. Despite agreeing with Justice Gray that the Aborigines Protection Board was the legal guardian of Bruce, the Full Court found this did not give rise to ‘a wide-reaching fiduciary duty’.44 This returned the law of fiduciary duty in relation to Stolen Generations to the position it had been in before Gray’s ruling.
Although it arrested a string of failures in Stolen Generations cases, its precedent value remains unclear, as much depends on the legislative scheme in question and the factual situation of the plaintiff in question.45 This was made evident by the more recent failure of the Collard family in its case against the State of Western Australia.46
Back in 1994 and 1995, while working at the ALS, I spent many hours interviewing members of the Collard family. I heard how, between 1959 and 1961, not long after Bruce Trevorrow’s removal from his parents in South Australia, the Western Australian authorities removed nine of Donald and Sylvia Collard’s thirteen children. One of those removed was placed in foster care; the rest were sent to missions or to Sister Kate’s Children’s Home in the Perth suburb of Queens Park, where one of the siblings alleges she was sexually abused.
The voices of the Collards were voices of sorrow and trauma. In her judgment, Justice Janine Pritchard said while she felt for the family, their case was not established on the balance of probabilities. But she said, ‘it is impossible not to be deeply moved by the plaintiffs’ experiences, and one cannot help but admire their efforts to rebuild and maintain their family relationships.’47
Yes, it was impossible not to be deeply moved. I was, and I often think about the stories of their experiences told to me over many hours.
Regardless of subsequent unsuccessful cases, the Trevorrow case shifted the judicial interpretation of historical evidence and acted as a catalyst for a reparations or redress scheme that would allow claimants to seek compensation without going through an expensive and prolonged court process. The South Australian Government did announce it was looking into the matter after Gray’s decision in 2008, yet members of the South Australian Stolen Generations had to wait until 2015 before the announcement of a reparations scheme, operational from the end of March 2016.
The Tasmanian Government established a reparations scheme for members of the Stolen Generations in early 2008.
A national reparations scheme remains elusive, though some members of the Stolen Generations will be eligible to seek compensation through a national redress scheme set up by the Commonwealth Government, all state and territorial governments, and the various responsible churches and other institutions as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse, which concluded in 2017.
GLOSSARY
common law
The law developed in the royal courts of England to overcome the fragmentation of the many local customary law systems prevalent before the successful manifestation of centralised royal institutions. Under English common law, courts have the power to create law, whereas under the European civil law systems, for example, courts may only apply (interpret, construe) the codified law. Common law was originally extremely formalised and based on the availability of specifically construed actions. This led to many gaps and to the formation of equity as a separate branch of law that became a competitive system of law and courts to supplement, correct and control the rules of common law. See also ‘statutory duty’.
directions hearing
A hearing held before the trial at which the court makes enquiries of the parties to inform itself of the issues in dispute and to establish whether those issues are able to be resolved. A plan or direction as to how the case will proceed is usually also made.
duty of care
A legal obligation on a person to act with reasonable care to protect others from harm. A breach of that duty of care comes within the purview of the law of negligence. It involves the negligent conduct (including in some cases the omission to act) of a person who owes a duty of care to another and who fails to maintain the standard required to comply with that duty. For a successful action in negligence, the plaintiff must establish the existence of a duty of care, a breach of that duty and material damage as a result of that breach of duty.
exemplary damages
Damages intended to punish the defendant for conduct displaying a conscious and contemptuous disregard for the plaintiff’s rights and to deter such conduct in the future. In Australia, awarding exemplary damages is exceptional, while the courts in the USA more readily award exemplary damages.
expert testimony
An inference from observed and communicable data, made by an expert. Expert witnesses are people who are qualified, either by actual experience or by careful study, to form definite (expert) opinions with respect to a scientific, technical or professional issue.
extension of time
Permission or leave granted to a party to a legal proceeding to take longer to perform some action than would otherwise be allowed under the relevant legislation, court rules, orders or judgment.
false (or wrongful) imprisonment
An action against someone for unlawfully restraining the physical liberty of another person. In effect, the argument in the Trevorrow case was that placing Bruce with the Davies family without the consent of his parents and refusing Thora’s request that they return Bruce to her amounted to imprisonment because it denied Bruce freedom of movement.
fiduciary duty
A legal obligation to act in the best interest of another person with whom a special relationship of trust exists. A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. A fiduciary relationship gives the fiduciary an opportunity to exercise power or discretion to the detriment of the other person, who is vulnerable to abuse by the fiduciary. If the fiduciary acts contrary to that duty, it is called a breach of fiduciary duty.
lateral testimony
Evidence of an indirect nature about a particular situation. Often it relates to independent expert court testimony based on the witness’s expertise.
legal professional privilege
A special right that protects the confidentiality of communications between a lawyer and their client when the dominant purpose is to seek or to give legal advice for use in current or projected legal proceedings. It is a fundamental common law right to encourage clients to disclose frankly information that will help their lawyer build their case.
misfeasance in public office
This may occur when a public official acts unlawfully in that they exceed or misuse a public power or position. It constitutes an intentional tort. See also ‘ultra vires’.
novus actus interveniens
Sometimes referred to as ‘snapping the causal chain’, this is a rule which holds that a defendant is not liable for damage that an overwhelming supervening event has caused.
probative value of evidence/testimony
All evidence seeks to prove something during a trial. Probative value considers the usefulness of the evidence in proving, or disproving,
a particular fact in the case, with the court determining the actual value of such evidence according to its relevance to the case at hand. Testimony may be probative or non-probative.
procedural fairness
A concept that imposes requirements or rules to ensure fairness in the decision-making procedure of courts and administrators. The three rules of procedural fairness are the hearing rule (the right to a hearing), the bias rule (the administrator or decision-maker must not be biased, actual or perceived, towards or against a party) and the no evidence rule (the administrator’s decision must be based on logically probative evidence).
shifting evidentiary onus
A shifting takes place when something that usually one party has to prove (the so-called burden of proof ) now, because of special circumstances, has to be proven by the other side. The burden of proof is the task of proving that you are correct, for example when you have accused someone of a crime.
statutory duty
A liability or duty imposed by statute to do or not to do something. Statute law refers to legislation passed by the legislature (parliament). Statute law has primacy over common law (which often is used to include all court-based law—traditional common law and equity law). See also ‘common law’.
taking silk
When a barrister is made a Queen’s Counsel (or King’s Counsel) or Senior Counsel.
threshold of culpability
The level of culpability required for a crime or a tort, for example mens rea (intention), recklessness, or mere negligence or carelessness.
ultra vires
Describes actions taken by someone or an organisation that exceeds the scope of power or authority given to them.
voir dire
Described as a trial within a trial, it is a special procedure as part of a trial which leads to a separate but incidental decision by the trial judge on the admissibility of a witness. A voir dire hearing often examines the admissibility of evidence or the competency of a witness or juror. In a jury trial, in most cases the jury is excused while the voir dire hearing takes place.
NOTES
1Williams v Minister, Aboriginal Land Rights Act 1983 (Unreported, Supreme Court of New South Wales, Studdert J, 25 August 1993) (‘Williams time extension application’). This case would play itself out over a number of years in the courts. Refer to Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 (‘Williams time extension appeal’); Williams v Minister, Aboriginal Land Rights Act 1983 (Unreported, Supreme Court of New South Wales, Bruce J, 23 July 1997); Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86 (‘Williams trial’); Williams v Minister, Aboriginal Land Rights Act 1983 [2000] Aust Torts Reports ¶81–578 (‘Williams appeal’).
2Williams trial (1999) 25 Fam LR 86, 108.
3Williams appeal [2000] Aust Torts Reports ¶81–578, 64, 178.
4For an exploration of the life of Robert Riley, refer to Q. Beresford, Rob Riley: An Aboriginal Leader’s Quest for Justice (Aboriginal Studies Press, Canberra, 2006).
5Mabo v Queensland (No 2) (1992) 175 CLR 1. Also refer to Mabo v Queensland (1986) 64 ALR 1, Mabo v Queensland (No 1) (1988) 166 CLR 186 and the Native Title Act 1993 (Cth). Also refer to P.H. Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (University of Toronto Press, Toronto, 2005).
6S.J. Hemming, ‘Camp Coorong: An Aboriginal “Cultural Centre”’ (1992) 30 Journal of the Anthropological Society of South Australia 149, 151
7Williams time extension application (Unreported, Supreme Court of New South Wales, Studdert J, 26 August 1993). All jurisdictions in Australia have enacted legislation restricting the time within which a plaintiff may sue and in some cases the circumstances in which limitation periods may be extended. The relevant legislation in New South Wales is the Limitation Act 1969 (NSW).
8R v Bransden (Unreported, Supreme Court of South Australia, Bollen J, 14 March 1991).
9Gray v State Government Insurance Commission (Unreported, Supreme Court of South Australia, Pirone J, 10 September 1996).
10The litigation in the waterfront dispute is extensive. It includes Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153 ALR 602; Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626; Patrick Stevedores v Maritime Union of Australia [1998] HCA 30; Patrick Stevedores v Maritime Union of Australia [1988] HCA 31; Patrick Stevedores v Maritime Union of Australia [1998] HCA 32.
11For a good scholarly article on the Gray case, refer to R. Mulheron, ‘The Availability of Exemplary Damages in Negligence’ (2000) 4 Macarthur Law Review 61.
12These cases, No. M21 of 1995 and No. 05 of 1995, respectively, were filed in the Melbourne registry office of the High Court of Australia in 1995.
13Kruger v Commonwealth; Bray v Commonwealth (1997) 190 CLR 1.
14Wik Peoples v Queensland (1996) 187 CLR 75.
15R. Ray (President, Law Council of Australia), ‘The Role of the Attorney-General: An Australian Perspective’, Speech given at the International Bar Association Conference, Buenos Aires, 13 October 2008.
16Australian historian Peter Read coined this term in relation to his historical study of New South Wales: see P. Read, The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969 (Aboriginal Children’s Research Project, New South Wales Government, Sydney, 1982). Although the term has attracted criticism, it has gained common usage. By 2001 the term had gained an entry in The Australian Oxford Dictionary, being defined as: ‘the Aboriginal people who were removed from their families as children and placed in institutions or fostered by white families’. B. Moore (ed), The Australian Oxford Dictionary (Oxford University Press, Melbourne, 5th ed, 2001) 1087–8.
17P. Carlyon, ‘White Lies’, The Bulletin (Sydney), 12 June 2001, 27.
18Williams trial (1999) 25 Fam LR 86.
19Williams appeal [2000] Aust Torts Reports ¶81–578.
20Refer to A. Cody, ‘Williams v the Minister, Aboriginal Land Rights Act 1983’ (2001) 7(1) Australian Journal of Human Rights 155.
21Cubillo v Commonwealth (1999) 89 FCR 528 (‘Cubillo strike out application’); Cubillo v Commonwealth [No 2] (2000) 103 FCR 1 (‘Cubillo trial’); Cubillo v Commonwealth (2001) 112 FCR (‘Cubillo appeal’).
22The Royal Commission into Institutional Responses to Child Sexual Abuse (established by then Prime Minister Julia Gillard) held its first public hearing on 16 September 2013. For the Royal Commission’s final report, refer to Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017).
23X. La Canna, ‘Sex Abuse and Violence: Secrets of Retta Dixon Home for Aboriginal Children Laid Bare at Royal Commission’, ABC News (online), 10 September 2015
24X. La Canna, ‘Sex Abuse and Violence’. See also Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No 17: The Response of the Australian Indigenous Ministries, the Australian and Northern Territory Governments and the Northern Territory Police Force and Prosecuting Authorities to Allegations of Child Sexual Abuse which Occurred at the Retta Dixon Home (2015)
25Note should be made of the case of Valerie Linow, who made a claim under the New South Wales Victims of Crime Compensation Tribunal pursuant to the Victims Support and Rehabilitation Act 1996 (NSW). The Tribunal Assessor held that on the balance of probabilities, ‘the applicant was subjected to a series of indecent and sexual assaults by the alleged offender’ and accepted that Linow suffered from psychiatric disorders. However, the Tribunal denied her claim because the Assessor believed that she would not have experienced emotional harm had the sexual assaults occurred while she was living in a loving family environment; it was her removal and ins
titutionalisation that caused her psychological harm. Refer to Notice of Determination, Claim of Valerie Linow (Victims of Crime Compensation Tribunal, New South Wales, File Reference 73123, 15 February 2002). On appeal, the Victims of Crime Compensation Tribunal overturned the decision, holding that compensable injury had to be a direct result, not the ‘direct result of the sexual assaults’. Further, an aggravation of an existing condition by an act of violence would qualify as a compensable injury. Refer to Appeal Determination, Claim of Valerie Linow (Victims of Crime Compensation Tribunal, New South Wales, File Reference 73123, 30 September 2002).
26Researchers included Graham Hyde, Andrew Alston, Christopher Holland, Dr Irene Watson, George Lesses, Christopher Johnston and Andrew Nettlefold.
27Occasionally there were other barristers appearing for Bruce, including G. Barrett QC.
28C. Kourakis (Chief Justice), ‘In the Full Court of the Supreme Court of South Australia, Special Sitting, On the Retirement of the Honourable Justice Gray, 25 February 2016’, Supreme Court Library of South Australia.
