by Antonio Buti
29A. Harris QC, ‘For Bar Association of South Australia, 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.
30Refer further to R. Edney, ‘R v Scobie: Finally Taking the Royal Commission into Aboriginal Deaths in Custody Seriously’ (2004) 6 Indigenous Law Bulletin 20.
31R v Scobie (2003) SASR 85.
32R v Scobie (2003) SASR 85, para 86.
33Refer further to B. Galaway and J. Hudson (eds), Restorative Justice: International Perspectives (Criminal Justice Press, New York, 1996); and H. Strang and J. Braithwaite (eds), Restorative Justice and Civil Society (Cambridge University Press, Cambridge, 2001).
34Trevorrow v South Australia [2004] SASC 355.
35Instead Richardson briefed another Melbourne barrister, Bryan Keon-Cohen QC, who had been junior counsel for the plaintiffs throughout the Mabo litigation (1982–1992), but Keon-Cohen did not provide a hopeful opinion on the legal merits of Bruce’s claim.
36Nulyarimma v Thompson [1999] FCA 1192.
37Trevorrow v South Australia (No 2) [2005] SASC 369.
38C. Raynes, ‘Did SA Aborigines’ Last Chief Protector Go Beyond the Law?’, The Adelaide Review (Adelaide), 18 March 2005, 8–9.
39The Crown did appeal the decision, though unsuccessfully. Refer to Trevorrow v South Australia (No 4) [2006] SASC 42, which was decided after the commencement of the trial. Further interlocutory matters were dealt with in Trevorrow v South Australia [No 3] [2005] SASC 471.
40South Australian Solicitor-General 1927–1952.
41South Australian Solicitor-General 1952–1959.
42Refer to Sanders v Snell (1998) 196 CLR 329, 344–5.
43Trevorrow v South Australia (No 5) [2007] SASC 285, para 1227.
44South Australia v Lampard-Trevorrow (2010) SASC 56, 333.
45A. Buti, ‘The Stolen Generations and Litigation Revisited’ (2008) 32 Melbourne University Law Review 382, 420.
46Collard v Western Australia [No 4] [2013] WASC 455.
47Collard v Western Australia [No 4] [2013] WASC 455, para 5.
BIBLIOGRAPHY
In addition to the sources listed here, the author extensively used the 3,085 pages of transcript of the trial proceedings and gained insightful information from the voluminous documentation prepared by Bruce Trevorrow’s legal team for the trial.
INTERVIEWS (NAMES AND POSITIONS HELD AT TIME OF INTERVIEW)
Hon. Michael Atkinson, former South Australian Attorney-General
Enzo Belperio, Associate of Justice Gray
Julian Burnside QC, Senior Counsel for Bruce Trevorrow
Hon. Gregory Crafter, former South Australian Education Minister
Neil Gillespie, Chief Executive Officer of the Aboriginal Legal Rights Movement
Tom Gray, Justice of the Supreme Court of South Australia
Martin Hinton QC, Solicitor-General of South Australia
Carol Malinda, daughter of Bruce’s foster parents
Claire O’Connor, Junior Counsel for Bruce Trevorrow
Veronica Pepper, wife of Bruce Trevorrow
Joanna Richardson, Solicitor for Bruce Trevorrow
Chris Sumner, former South Australian Attorney General
Tom Trevorrow, brother of Bruce Trevorrow
BOOKS AND MONOGRAPHS
Arendt, H., Responsibility and Judgment (Schocken Books, New York, 2003)
Bell, D., Listen to Ngarrindjeri Women Speaking (Spinifex Press, North Melbourne, 2008)
Beresford, Q., Rob Riley: An Aboriginal Leader’s Quest for Justice (Aboriginal Studies Press, Canberra, 2006)
Biskup, P., Not Slaves, Not Citizens: The Aboriginal Problem in Western Australia, 1898–1954 (University of Queensland Press, St Lucia, 1973)
Bowlby, J., Maternal Care and Mental Health (World Health Organization, Geneva, 1951)
Buti, A., Separated: Aboriginal Childhood Separations and Guardianship Law (The Sydney Institute of Criminology, University of Sydney, Sydney, 2004)
Buti, A., Sir Ronald Wilson: A Matter of Conscience (University of Western Australia Press, Crawley, 2007)
Galaway, B. and J. Hudson (eds), Restorative Justice: International Perspectives (Criminal Justice Press, New York, 1996)
Haebich, A., Broken Circles: Fragmenting Indigenous Families 1800–2000 (Fremantle Arts Centre Press, Fremantle, 2000)
Hall, A., A Brief History of the Laws, Policies and Practices in South Australia which led to The Removal of Many Aboriginal Children (South Australian Government, Adelaide, 1997)
Kelly, P. and T. Bramston, The Dismissal in the Queen’s Name (Penguin, Sydney, 2015)
Kercher, B., An Unruly Child: A History of Law in Australia (Allen and Unwin, North Sydney, 1995)
Kidd, R., Black Lives, Government Lives (University of New South Wales Press, Sydney, 2000)
Moore, B (ed), The Australian Oxford Dictionary (Oxford University Press, Melbourne, 5th ed, 2001)
Raynes, C., ‘A Little Flour and a Few Blankets’: An Administrative History of Aboriginal Affairs in South Australia, 1834–2000 (Department for Administrative Information Services, Gepps Cross, 2002)
——, The Last Protector: The Illegal Removal of Aboriginal Children from Their Parents in South Australia (Wakefield Press, Kent Town, 2009)
Read, P., 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)
Russell, P.H., Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (University of Toronto Press, Toronto, 2005)
Rutter, M., Maternal Deprivation Re-assessed (Penguin, New York, 1972)
Strang, H. and J. Braithwaite, (eds), Restorative Justice and Civil Society (Cambridge University Press, Cambridge, 2001)
van Krieken, R., Children and the State (Allen and Unwin, North Sydney, 1991)
JOURNAL ARTICLES AND ONLINE SOURCES
Buti, A., ‘Removal of Indigenous Children from their Families: The Litigation Path’ (1998) 27 University of Western Australia Law Review 203
Buti, A., ‘The Stolen Generations and Litigation Revisited’ (2008) 32 Melbourne University Law Review 382
Carlyon, P., ‘White Lies’, The Bulletin (Sydney), 12 June 2001 27
Cody, A., ‘Williams v the Minister, Aboriginal Land Rights, Act 1983’ (2001) 7(1) Australian Journal of Human Rights 155
Edney, R., ‘R v Scobie: Finally Taking the Royal Commission into Aboriginal Deaths in Custody Seriously’ (2004) 6 Indigenous Law Bulletin 20
Hemming, S.J., ‘Camp Coorong: An Aboriginal “Cultural Centre”’ (1992) 30 Journal of the Anthropological Society of South Australia 149
La Canna, X., ‘Sex Abuse and Violence: Secrets of Retta Dixon Home for Aboriginal Children Laid Bare at Royal Commission’, ABC News (online), 10 September 2015
Mulheron, R., ‘The Availability of Exemplary Damages in Negligence’ (2000) 4 Macarthur Law Review 61
Ogle, G., ‘Just When You Thought it was Safe to Talk about Hindmarsh Island’ (2002) 5 Indigenous Law Bulletin 16
Raynes, C., ‘Did SA Aborigines’ Last Chief Protector Go Beyond the Law?’ The Adelaide Review (Adelaide), 18 March 2005, 8–9
Van Rijswijk, H. and T. Anthony, ‘Can the Common Law Adjudicate Historical Suffering?’ (2012) 36 Melbourne University Law Review 618
Zelling, H., History (2012) Courts Administration Authority of South Australia
REPORTS AND SUBMISSIONS
Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985), para 156,
Buti, A., Telling Our Story: A Report by the Aborigin
al Legal Service of Western Australia (Inc) on the Removal of Aboriginal Children from their Families in Western Australia (Aboriginal Legal Service of Western Australia (Inc), East Perth, 1995)
Buti, A., After the Removal: A Submission by the Aboriginal Legal Service of Western Australia (Inc) to the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from Their Families (Aboriginal Legal Service of Western Australia (Inc), East Perth, 1996)
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991)
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017)
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)
Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Inslander Children from Their Families, Bringing Them Home, 26 May 1997
SPEECHES
Caruso, D., ‘For Law Society of South Australia, 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
Gray, T., ‘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
Harris, A., ‘For Bar Association of South Australia, 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
Howard, J., ‘Motion of Reconciliation’, 26 August 1999, Prime Minister, Parliament of Australia,
Keating, P., ‘Redfern Park Speech 10 December 1992’ (1993) 3(61) Aboriginal Law Bulletin 4
Kourakis, C., ‘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
Ray, R., ‘The Role of the Attorney-General: An Australian Perspective’ (Speech given at the International Bar Association Conference, Buenos Aires, 13 October 2008)
Rudd, K., ‘Apology to Australia’s Indigenous Peoples’, 13 February 2008, House of Representatives, Parliamentary Debates, Commonwealth of Australia,
LEGISLATION
Aboriginals Ordinance 1918 (NT)
Aborigines Act 1934–1939 (SA)
Aborigines Protection Act 1909 (NSW)
Child Welfare Act 1939–1952 (NSW)
Children’s Protection Act 1936 (SA)
Community Welfare Act 1972 (SA)
Freedom of Information Act 1991 (SA)
Limitation Act 1969 (NSW)
Limitations of Actions Act 1936 (SA)
Maintenance Act 1926 (SA)
Motor Vehicles Act 1959 (SA)
Native Title Act 1993 (Cth)
Racial Discrimination Act 1975 (Cth)
Victims Support and Rehabilitation Act 1996 (NSW)
CASES CITED
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingsloe (1945) 71 CLR 637
Bray v Commonwealth (1997) 190 CLR 1
Breen v Williams (1996)186 CLR 71
Chappel v Hart (1998) 195 CLR 232
Notice of Determination, Claim of Valerie Linow (Victims of Crime Compensation Tribunal, New South Wales, File Reference 73123, 2002)
Appeal Determination, Claim of Valerie Linow (Victims of Crime Compensation Tribunal, New South Wales, File Reference 73123, 30 September 2002)
Collard v Western Australia [No 4] [2013] WASC 455
Cubillo v Commonwealth (1999) 89 FCR 528
Cubillo v Commonwealth [No 2] (2000) 103 FCR 1
Cubillo v Commonwealth (2001) 112 FCR
Gray v State Government Insurance Commission (Unreported, Supreme Court of South Australia, Pirone J, 10 September 1996)
Kruger v Commonwealth; Bray v Commonwealth (1997) 190 CLR 1
Mabo v Queensland (1986) 64 ALR 1
Mabo v Queensland (No 1) (1988) 166 CLR 186
Mabo v Queensland (No 2) (1992) 175 CLR 1
Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153 ALR 602
Nulyarimma v Thompson [1999] FCA 1192
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
R v Bransden (Unreported, Supreme Court of South Australia, Bollen J, 14 March 1991)
R v Scobie (2003) SASR 85
Sanders v Snell (1998) 196 CLR 329
South Australia v Lampard-Trevorrow [2010] SASC 56
Trevorrow v South Australia [2004] SASC 355
Trevorrow v South Australia (No 2) [2005] SASC 369
Trevorrow v South Australia (No 3) [2005] SASC 471
Trevorrow v South Australia (No 4) [2006] SASC 42
Trevorrow v South Australia (No 5) [2007] SASC 285
Trevorrow v South Australia (No 6) [2008] SASC 4
Trevorrow v South Australia (No 7) [2008] SASC 285
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Wik Peoples v Queensland (1996) 187 CLR 75
Williams v Minister, Aboriginal Land Rights Act 1983 (Unreported, Supreme Court of New South Wales, Studdert J, August 1993)
Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497
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 v Minister, Aboriginal Land Rights Act 1983 [2000] Aust Torts Reports ¶81–578
Xl Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12
ABOUT THE AUTHOR
Dr Antonio Buti was educated at Kelmscott Senior High School, the University of Western Australia, Australian National University, Oxford University and Yale Law School. He is the Member for Armadale in the Legislative Assembly of the Western Australian Parliament, Senior Honorary Fellow at the University of Western Australia Law School and Adjunct Professor at the School of Law, Murdoch University. Dr Buti’s biography of Sir Ronald Wilson, A Matter of Conscience, won the 2007 Western Australian Premier’s Book Award for non-fiction, as well as the Premier’s Prize in the same year.
ALSO BY THE AUTHOR
A.Buti, Brothers: Justice, Corruption and the Mickelbergs (Fremantle Press, Fremantle, 2011)
A.Buti, Sir Ronald Wilson: A Matter of Conscience (University of Western Australia Press, Crawley, 2007)
A.Buti, Separated: Aboriginal Childhood Separations and Guardianship Law (Sydney Institute of Criminology, Sydney, 2004)
AS CO-AUTHOR:
D.Thorpe, A. Buti, C. Davies, P. Jonson, Sports Law (Oxford University Press, South Melbourne, 3rd edition, 2017)
D.Thorpe, A. Buti, C. Davies, S. Fridman, P. Jonson, Sports Law (Oxford University Press, South Melbourne, 2nd edition, 2013)
D.Thorpe, A. Buti, C. Davies, S. Fridman, P. Jonson, Sports Law (Oxford University Press, South Melbourne, 1st edition, 2009)
A.Buti and S. Fridman, Drugs, Spor
t and the Law (Scribblers Publishing, Mudgeeraba, 2001)
ACKNOWLEDGEMENTS
I accumulated enormous debts of gratitude to so many people in researching and writing this book.
The first is to my dear friend Eric Fisher, who kindly gave of his time and talents to improve the quality of earlier versions of the manuscript. His kindness and suggestions have been invaluable and I will remain forever thankful.
My deepest thanks go to Julian Burnside QC and former Justice Tom Gray. They were both willing to provide voluminous court documentations and answers to so many questions. However, at all times, they upheld their professional obligations as barrister and trial judge, respectively. In addition, information and documentation provided by Joanna Richardson has been crucial in the writing of this book.
I spoke to many people in researching this book. I deeply appreciate the useful and valuable information generously provided by the Hon. Michael Atkinson, Enzo Belperio, the Hon. Gregory Crafter, (the late) Neil Gillespie, Martin Hinton QC, Carol Malinda, Claire O’Connor, Veronica Pepper, Chris Sumner and (the late) Tom Trevorrow. Thank you all.
To Raff Piccolo, thank you for assisting with follow-up interviews, which provided essential additional information. I also thank Judith Lewis, who transcribed many hours of taped interviews with skill and professionalism.
Many other people assisted in a number of ways: Professor Jurgen Brohmer, Louise Cooper, Associate Professor Robert Cunningham, Sandy Hancock, Mary Anne Kenny, the Hon. Tony Piccolo MLA, Steve Shaw, Chris Smyth, Tina White, Professor John Williams and the wonderful library staff at the Parliament of Western Australia. There may be others who have assisted in some way—if so, please accept my sincere apologies for my lapse of memory.
Now to the Fremantle Press family.
I owe a huge debt of gratitude to publisher Naama Grey-Smith for believing in this book. Thank you so much. It has been great to team up again with the wonderful Jane Fraser, a most professional and delightful head of a publishing house. To my editor, Kelly Somers, you have been truly wonderful to work with. Your skills, judgement and encouragement have made the editing process so much more bearable and productive. Thank you sincerely. To Armelle Davies, Claire Miller and the rest of the team at Fremantle Press, thank you for being so talented and helpful.
