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University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
Can Common Law Adjudicate Historical Suffering? Evaluating South
Australia v Lampard-Trevorrow (2010)
Honni van Rijswijk and Thalia
Anthony
I INTRODUCTION
The case of South Australia v
Lampard-Trevorrow[1] opens
up key questions about the capacity and willingness of the common law to
adjudicate past acts of the state. In Lampard-Trevorrow, the South
Australian Court of Appeal dismissed the State’s appeal against the
decision of Gray J in Trevorrow v South Australia (No
5),[2] which awarded Bruce
Trevorrow damages against the government for his removal from his family as an
infant, making him the first member
of the Stolen Generations to successfully
claim.[3] This article considers the
significance of the appeal decision, following the successful trial judgment, by
examining what distinguishes
the case from past, unsuccessful claims, and its
implications for future claimants from the Stolen Generations. In addition, we
consider
what the case means in terms of the law’s acceptance of a
different kind of historical and evidential interpretation from previous
cases
and how this is channelled into the issue of consent. We argue that the role and
interpretation of consent have broad ramifications
for law’s potential to
adjudicate responsibility for historical harms.
There has been significant
criticism of the ways in which courts have interpreted the operation of state
power in relation to the
Stolen Generations, essentially distancing specific
acts of state actors from the context of Stolen Generations
policy.[4] This practice has arisen in
a number of ways in the cases, through the courts’ evaluation of both
legal and factual issues.
Trevorrow and Lampard-Trevorrow
(hereafter ‘the Trevorrow Cases’) signify a break in the law’s
seeming incapacity to adjudicate historical suffering.
This break raises the
compelling question of whether the common law has now become a site available
for the redress of historical
injuries suffered by members of the Stolen
Generations. How exceptional are the Trevorrow Cases? To what degree does
Lampard-Trevorrow open up hope for a new class of claimants? Is the
common law now a significant site for the adjudication of these important,
enduring
harms? Here we explore the implications of the case for law’s
role in the future adjudication of historical harms. We argue
that
Lampard-Trevorrow both opens doors for claimants, based on its broad
reading of the legislation and the notion of consent, and closes them, given its
specific facts, legislative framework and unwillingness of the court to find
false imprisonment or a breach of fiduciary duty arising
from the facts.
The
purpose of this article is to explore the Trevorrow Cases and offer some insight
into the implications for the common law’s
potential to adjudicate
historical injuries. The article is divided into four substantive parts.
Following the introduction, Part
II provides the context for the Trevorrow
Cases, including a summary of past cases, a description of the different
statutory frameworks
that were in issue in these cases, and consideration of the
impact of these specificities on the outcome in the Trevorrow Cases.
Part III
provides a critical commentary on the Lampard-Trevorrow Appeal, including
the ways it limits some of the trial judgment’s potential. Here, we
consider the key findings of the Appeal
regarding: liability for negligence and
misfeasance in public office; the duty to accord procedural fairness; the
discretion to grant
an extension of time; and the tort of false imprisonment and
breach of fiduciary duty, in respect of which the trial judge’s
findings
were ultimately overturned, findings which, we argue, limit the potential of
Lampard-Trevorrow. In particular, we examine, and lament, the appellate
court’s more limited reading of false imprisonment in contrast to the
trial judgment. We argue that this cause of action is, first, a more fitting
analogy for claims that arise out of the circumstances
of the Stolen
Generations, in comparison to other categories, and, second, a category that
would allow the law to adjudicate a wider
range of claims (and so allow the law
a greater role in the adjudication of responsibility for historical injuries),
since the evidentiary
requirements that make these claims so difficult for
claimants in this area are reversed in the case of false imprisonment. We also
critique the failure of the Court of Appeal to find that the removal led to a
fiduciary duty on the part of the state, due to an
overly strict interpretation
of the scope of fiduciary duties. Part IV examines what we consider to be
the key interventions of Trevorrow Cases in the history of the common
law’s adjudication
of claims relating to the Stolen
Generations—namely, the court’s demonstration of a willingness to
examine evidence critically
and contextually, as well as its critical
examination of standards in operation at the time the policies were administered
(and willingness
to decide questions of responsibility regarding past acts of
the state). Both these practices of interpretation signify a break from
previous
litigation in this area, and augur some potential for the common law’s
role into the future. Finally, Part V examines
what we consider to be one of the
main limitations of the adjudication of these historical injuries at common law,
namely the presence
of problematic ‘myths’ concerning parental
consent, which determine not only the nature of ‘good’ and
‘bad’
litigants, but which also reinforce false and harmful
narratives about the operation of power. As a result of Stolen Generations
policy, and the courts’ interpretation of the statutory regimes in which
this took place, consent has become one of the ‘stories
that had
normalized state intervention yet at the same time ignored the subjectivity and
experience of Indigenous people
altogether’.[5]
We conclude
that there may be some capacity for the common law to redress historical harms,
especially if courts in the future adopt
the practices of interpretation from
the Trevorrow Cases regarding the significance of past policy and evidence.
However, this potential
needs to be balanced against the weight of precedent,
including the law’s habit in past cases of distancing itself from the
role
of adjudicating historical wrongs of the state. In some ways, the question is,
‘Will the common law evaluate historical suffering?’ But it
is also a question of the possibilities that have been determined by
existing
precedent. These points naturally raise the normative question of whether the
law should become a site for the adjudication of historical and cultural
injuries – the injuries of colonisation. A number of people have
commented
on this question, concluding that litigation is ‘a poor forum for judging
the big picture of history’.[6]
The Report of the National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families, Bringing Them Home,
recommended that a reparations scheme be adopted to deal with compensation
arising from harms suffered by the Stolen
Generations.[7] The advantage of the
reparations approach is that it could respond not only by providing compensation
that avoids the limitations
and vagaries of litigation, thus administering a
fairer form of redress, and saving survivors from unnecessary further trauma,
but
it could also include apologies and acknowledgements, and guarantees that
such policies will never be
repeated[8]—discursive responses
that matter. Such a solution could also redress the problematic myths and
narratives that are part of
common law history regarding the Stolen Generations
cases, including the narrative concerning parental consent. This would provide
the opportunity for a freer narrative response to the harms—providing for
compensation in conjunction with statements that
acknowledge the harms of
history, the historical and contemporary complicity of law and society, and
compensation without reliance
on the problematic myths that are still part of
common law adjudication.
PART II THE CONTEXT OF LAMPARD-TREVORROW IN
RELATION TO PREVIOUS STOLEN GENERATIONS LITIGATION
In many ways, Gray
J’s judgment in Trevorrow, and the appeal that followed it, signify
a ‘markedly different ... approach and outcome to what came before
it’.[9] At the same time,
commentators have pointed to the distinctive nature of the factual and legal
basis of the decision, including that
it was based on an ‘ideal
plaintiff’, and suggested that this may limit its
potential.[10] In this section, we
briefly summarise the facts of the case, as compared to earlier Stolen
Generations litigation, as well as the
relevant statutory frameworks courts
considered in each case. The motivating question of this section is to what
extent the factual
circumstances and statutory framework of Trevorrow is
exceptional? To what extent is the favourable outcome due to these
specificities, or changes in the common law’s approach
questions of law,
fact and policy, to questions of responsibility for past actions, and acts of
the state? And of particular pertinence
to our organising question, what does
this mean for the future capacity of the common law to redress these historical
injuries?
In Kruger v The
Commonwealth,[11] nine
Aboriginal claimants argued the constitutional invalidity of the Northern
Territory’s Aboriginal Ordinance 1918, which purportedly authorised
the removal of Aboriginal and ‘half-cast’ children, and that this
cause of action gave
rise to damages for breach of express and implied
constitutional rights.[12] The High
Court held that the Ordinance: did not contravene s 116 of the
Constitution (freedom of
religion);[13] was valid under s 122
of the Constitution,[14] and
did not breach any implied right to freedom of movement and
association[15] or
equality.[16] The High Court
rejected claims that the Ordinance was enacted for the purposes of
genocide, finding instead that it was ‘beneficial’ in
intent.[17] Further, the
Ordinance did not violate any novel implied constitutional guarantees or
prohibitions,[18] and regardless,
breach of a constitutional right did not give rise to a novel cause of action in
damages outside contract or
tort.[19] A majority did not
consider whether the Constitution would limit genocidal legislation, a
question left open to future
litigation.[20] The decision also
left open the possibility for damages regarding the misuse of powers under the
Ordinance,[21] the court
emphasising here that such misuse must be judged by the standards of the time,
and not by contemporary
standards.[22]
This possibility
was taken up by the applicants in Cubillo v The
Commonwealth.[23] Here, the
Federal Court considered the same legislation as in Kruger. The
applicants, Lorna Cubillo and Peter Gunner, claimed that, through their removal,
the Commonwealth (through its agent, the Director
of Native Affairs, by virtue
of the doctrine of vicarious liability), committed the torts of negligence,
false imprisonment and breach
of statutory duty, and also breached its fiduciary
duties owed to the applicants. Lorna Cubillo, was born in 1938 and at the age
of
seven she was forcibly removed by the Aborigines Inland Mission and the Native
Affairs Branch to Retta Dixon Home in Darwin, where
she remained until she was
18 years old. The second plaintiff, Peter Gunner, was born in 1948 on a pastoral
station and was removed
when he was about seven years old to St Mary’s
Church of England Hostel in Alice Springs. He remained there until he was 16
years of age. Before Peter Gunner was removed in 1956 the trial judge described
him being ‘part of a happy, healthy Aboriginal
community and environment
at Utopia Station’.[24] The
Federal Court rejected the Commonwealth’s strike out
application,[25] but decided against
the plaintiffs on the merits of the
case.[26] O’Loughlin J found
there was insufficient evidence of a policy or practice of indiscriminate
removal,[27] and no genocidal intent
in either the legislation or its implementation by the Director of Native
Affairs and others.[28] The Full
Court of the Federal Court dismissed the
appeal,[29] and the plaintiffs were
denied leave to the High Court.[30]
The facts in Williams v The Minister, Aboriginal Land Rights Act
1983[31] were that Joy
Williams was removed immediately after her mother had given birth and while
being treated in hospital. Joy stayed in
children’s homes until she was
eighteen years old. She was removed under s 7(2) of the Aborigines Protection
Act 1909 (NSW), which gave the Aborigines Welfare Board the power to
take Joy under circumstances where the mother consented. She claimed
that the
removal caused her physical and psychological harm and she brought a number of
claims, including breach of common law duty
of care, breach of statutory duty,
breach of fiduciary duty and false imprisonment. The trial and appeal judgments
of the NSW Supreme
Court found that Williams’ removal was lawful given the
consent of the mother; the removal was in accordance with the Board’s
statutory duty; the removal was for the purpose of improving the prospects of
Williams,[32] and no common law duty
of care arose because this would ‘cut across the whole statutory system
for the protection of Aboriginal
children’, opening the litigation gates
too widely. [33]
On 25 December
1957, 13-month old Aboriginal infant Bruce Trevorrow was taken to the
Children’s Hospital in Adelaide, suffering
from a stomach complaint. Upon
his discharge, and without the knowledge or consent of his parents, the
Aborigines Protection Board
(APB) placed him with a foster family. For the
following ten years, he stayed with this family, during which time his mother
unsuccessfully
requested his return. In 1967, he was returned to live with her,
however, within one year he was placed in a boy’s home, where
he
periodically remained until he turned 18. Trevorrow claimed that this separation
from his natural family and the manner in which
he was returned to his mother
contributed to mental and physical health problems and a loss of cultural
identity that continued throughout
his adult life. He brought his case against
the State on the grounds of misfeasance in public office, negligence, false
imprisonment
and breach of fiduciary duties, causes of action in respect of
which the State denied any liability. Trevorrow also sought relief
through
damages and declarations. At trial, Gray J awarded $525,000
damages.[34] Of this amount, $75,000
was awarded as exemplary damages in respect of misfeasance in public office and
false imprisonment, the State
having acted ultra vires, cognisant of the
unlawfulness of Trevorrow’s removal from his
parents.[35]
The trial judgment
includes a detailed overview of the statutory framework applicable to Bruce
Trevorrow’s removal.[36] Gray
J found that the legislative scheme applicable, covering moments of the
plaintiff’s removal, placement and return, comprised
the Aborigines Act
1934-1939 (SA), the Maintenance Act 1926-1937 (SA) and the
Children’s Protection Act 1936 (SA). Central to the framework was s
10 of the Aborigines Act 1934, which provided that the APB was the
‘legal guardian’ of every Aboriginal child, notwithstanding that any
such child
had a living parent or other relative. The duties arising out of s 10
were set out in s 7. Justice Gray explained the key question
as follows:
The question for determination in these proceedings is not whether such a
policy existed, nor whether such a policy was lawful. ...
[But whether] the
State was bound to act in accordance with the terms of the relevant legislative
scheme and in accordance with its
fiduciary and other duties owed to the
plaintiff and that, in breach of those requirements, it failed to do
so.[37]
Accordingly, the
organising legal question in Trevorrow differed from those questions
considered in earlier Stolen Generations litigation, as it did not raise
questions about the existence
or lawfulness of a wider policy—the relevant
question was much more limited, ‘more
precise’.[38] One of the
central issues was the nature of powers and duties that arose from the phrase
‘legal guardian’—whether,
as the state contended, the
APB’s role and responsibility as legal guardian of every child pursuant to
s 10 of the Aborigines Act, meant that the APB was empowered to take any
steps necessary to execute its duties, including the unrestricted power to
remove an
Aboriginal child from their
parents.[39] The Court found that s
10 did not abrogate common law rights of parents in the absence of the
manifestation of a clear intention
to do so – for which the parliament had
not expressed.[40] Therefore, s 10
did not give the Board the power to foster an Aboriginal child without the
consent of the child’s
parents.[41] Buti argues that the
court ‘was imputed with the task of assessing the specific South
Australian legislative scheme in relation
to child removal and determining
whether the government departments and entities complied with this scheme in
their removal of the
plaintiff’.[42] It is this,
and the ‘conclusion that the state acted ultra vires by removing the
plaintiff’ that influenced all aspects
of Gray J’s findings, which
implies that the decision may not have much impact beyond Bruce
Trevorrow’s individual
circumstances.[43]
Another
significant distinction was the different characterisation of vicarious
liability in Trevorrow. A threshold question in Lampard-Trevorrow and
Cubillo Appeal was whether the State and Commonwealth respectively could
be held liable for the acts of their officials. In terms of vicarious liability,
in Cubillo Appeal, the Court approved O’Loughlan J’s
invocation of the ‘independent discretion rule’ to prohibit imputing
legal
liability to the Commonwealth or the responsible Minister for breaches of
guardianship duties by the Chief Protector of
Aborigines.[44] The Commonwealth was
accordingly held not to be vicariously responsible and therefore not liable for
the acts of its employees, who
exercised independent discretion in fulfilling
their public duties. This approach to examining the liability of the Crown by
reinforcing
the ‘protected position of governments’ in litigation
has been subject to
criticism.[45]
In contrast, in
Trevorrow, although the ‘independent discretion rule’ had
been abrogated by statue, it has been noted that the tone of Gray J’s
judgment would nonetheless indicate a strong judicial reluctance to countenance
the State evading liability through the application
of this
rule.[46] Gray J accordingly found
that the State was liable for the conduct of the APB or its Secretary.
Similarly, in Lampard-Trevorrow, the Court found the APB to be an
emanation of the State because it ‘acted for the benefit of the public and
of the State’.[47] As the body
that facilitated and funded the removal of Aboriginal children, the State was
responsible for the acts of its officials
in removing Trevorrow from his family.
The Full Court accordingly upheld Gray J’s finding that the State is
vicariously liable
for the Secretary or APB’s tort of misfeasance in
public office.
The evidence available also worked in Bruce Trevorrow’s
favour, as there were documentary records supporting the limits of the
state’s power, the breaches against Bruce Trevorrow, and also
medical/departmental records
available.[48] At trial, Gray J made
a number of findings based on the oral evidence of Bruce’s siblings and
half-siblings, and the state’s
own medical and departmental
records.[49] In contrast, much of
the written record was missing by the time of the trials of Cubillo and
Williams.[50] However,
as Buti points out, it is not as though the plaintiffs in Cubillo and
Williams did not have oral and documentary evidence to support their
claims—rather, ‘the courts simply found the evidence presented
by
the state to be more
persuasive’.[51] While it is
true that there was a greater volume of evidence available for the court to
consider in Trevorrow, including a significant state archive,
Trevorrow signifies a change in the courts’ practices of interpreting
historical evidence, as well as the ways in which the court framed
this evidence
in its conceptualisation of the legal categories—as we discuss below,
these issues of law and interpretation
of historical record are intimately
linked—and these changes imply Trevorrow has significance beyond
its factual-legal specificities. Most significantly, the courts had a different
approach to the historical
record. Second, the courts took a different approach
to the legal categories involved in the claim from earlier claims, interpreting
them in such a way that they applied to the situation of historical injuries
arising out of the Stolen Generations. Third, the courts
took a different, and
critical approach to the contemporary standards in place at the time of the
implementation of the policy, in
contrast to earlier cases; and the courts also
found that present-moment standards were relevant in evaluating certain aspects
of
the case. We would argue that the case’s innovations cannot be limited
to its particular legal-factual matrix, primarily because
they introduce methods
of interpretation that open up the law to a new relationship to responsibility
and the historical record.
In the following section, we examine each of the
elements of the appeal, comparing it to the trial judgment and previous
litigation
in relation to the Stolen Generations. In each, we pay particular
attention to the interpretation of historical record, the role
of consent, and
the significance of the statutory regimes at issue.
PART III ISSUES ON
APPEAL
B The State’s Liability for
Misfeasance
Trevorrow was the first case in which a Stolen
Generations litigant argued the tort of misfeasance in public
office.[52] The Full Court was
required to examine whether the State was liable for this tort in respect of
Trevorrow’s removal. The authorities
of Northern Territory v
Mengel[53] and Sanders
v Snell[54] define this tort to
include acts by a public officer that he or she knows to be beyond his or her
power and involve a foreseeable
risk of
harm.[55] For the purposes of the
tort of misfeasance in public office, the APB and its Secretary were both found
to be such officers exercising
public powers pursuant to the public
interest.[56] The APB had also been
advised by the Crown Solicitor of the limits of its legal authority to remove
Aboriginal children from their
parents. In promoting its policy of removal, the
APB was therefore found to have been generally cognisant that it was acting
ultra
vires. The Court accordingly found that the APB knew that it had no
authority to remove Trevorrow without the necessary parental
consent.
C
False Imprisonment
False imprisonment is committed when someone
‘directly subjects another to total deprivation of freedom of movement
without
lawful justification [or
consent]’.[57] It is a
powerful avenue for Stolen Generations litigants because it does not depend on
the government acting negligently or breaching
a statute. Rather, it arises
because the plaintiff has his or her liberty restricted. The potential for a
successful claim in false
imprisonment was demonstrated in the trial judgment of
Cubillo, where the Court found that Lorna Cubillo had a prima facie case
against the Director of Native Affairs for false imprisonment. However,
the
claim failed because the Commonwealth was held not to be vicariously liable for
the Director’s actions. Again in the trial
judgment of Trevorrow,
false imprisonment was made out based on a reading of the common law
requirements in UK
jurisprudence.[58]
However, the
South Australian Court of Appeal in Lampard-Trevorrow overturned this
finding through a narrow reading of ‘imprisonment’, in a way that
was anomalous to the contextual approach
it took to other aspects of its
reasoning – including consent. To begin with, the court held that, based
on the cases of Meering v Grahame-White Aviation Co
Ltd[59] and Murray v Ministry
of Defence[60] it was not
necessary to establish the detainee’s awareness of his or her detention
nor physical capacity to exercise freedom
of
movement.[61] To determine
whether Trevorrow was subject to false imprisonment, the Court found that the
central issue was whether he was subject
to a total deprivation of freedom of
movement in the absence of lawful authority. The Court reasoned that the element
of total restraint
was not made out in the present case, as any restraint during
Trevorrow’s placement with the foster family was attributable
to his young
age and the family’s ensuing obligation to care for him. While in foster
care, Trevorrow experienced freedom of
movement equal to that of other children
of a like age, subject only to normal restrictions placed on
children.[62] The Court accordingly
reversed Gray J’s finding of liability for wrongful detention.
The
court found that the care and protection given by the carer of a child is not a
deprivation of the child’s liberty. The
Court of Appeal reasoned that
Bruce Trevorrow ‘was able to move about (once he reached a certain age) as
he wished subject
only to the normal limits placed on children’ and was
‘not imprisoned within a defined area’ by his foster parents
beyond
the normal control of parents.[63]
The Bench stated:
It might be added that if this is a case of total restraint or total
deprivation of freedom of movement, then all small children are,
as a matter of
fact, equally subject to the same restraint. ... Bruce Trevorrow, when fostered
by Mrs Davies, had the same freedom
of movement, or absence of freedom as the
case may be, as other children of a like
age.[64]
However, this is a
very narrow and artificial reading of freedom of movement—one in which the
court is not comparing like circumstances
with like. The issue was not whether,
once handed over to the foster parents, those parents restrained Bruce Trevorrow
in a way that
was unusual for a small child to be restrained (after all, a
kidnapper could also set a child up in a house and treat them as any
other child
might be kept, but this does not take away from the fact that there has been an
initial act of kidnapping—it is
this act, and not the after-care, which
should matter to a legal interpretation). Rather, the issue was whether the
removal itself
could be interpreted as an act of restraint. The Court did not
appreciate that non-Aboriginal children of Bruce Trevorrow’s
age would
have had the freedom to be with their parents. It is only because of the policy
of the Stolen Generations that Trevorrow
was denied this freedom. The Court drew
unfitting analogies with restraint in childcare centres, stating, ‘Most
childcare centres
have substantial fences and a gate that children cannot
open’.[65] In this acontextual
reading, the Court was not addressing the liberty denied to Bruce Trevorrow to
be with his parents due to the
policy of Aboriginal child removal. In other
words, an Aboriginal child’s forcible restraint from his parents and
against his
parents’ wishes was regarded as the same as a non-Aboriginal
person who lived with his parents and was not subject to the Stolen
Generations
policy. As discussed below, the Court in Lampard-Trevorrow explicitly
acknowledged the problems with consent and this had legal effect. However, the
Court stopped short of recognising that
non-consent to removal might be a form
of restraint on the child, that is, a restraint to be with his or her
parents.
D Breach of Fiduciary Duty
The Court further
considered whether the APB’s failure to inform Trevorrow of the
unlawfulness of his removal and provide him
with access to legal advice
constituted a breach of fiduciary duty. In previous Stolen Generations cases,
arguments contending breaches
of fiduciary duty have largely not been
successful. In Williams v Minister, Aboriginal Land Rights Act 1983,
Abadee J denied a fiduciary claim similar to that in
Lampard-Trevorrow, reasoning that the protection of non-economic
interests, such as duties of guardianship, could not be warranted under
Australian
fiduciary law.[66] In
contrast to Williams, Gray J in Trevorrow imposed fiduciary
duties, which encompassed an obligation to inform Trevorrow of the circumstances
of his removal and facilitate access
to legal advice regarding the State’s
conduct.[67]
However, the court
in Lampard-Trevorrow closed the door opened in Trevorrow by a
narrow reading of fiduciary obligations. It agreed with the trial judge that the
APB was Trevorrow’s legal guardian and
Trevorrow was its ward, as provided
for under s 10 of the Aborigines Act 1934 (SA) (‘the 1934
Act’), and therefore a fiduciary relationship
existed.[68] It held that the
APB’s relationship ‘with Aboriginal children generally’ did
not give rise to a ‘wide reaching
fiduciary
duty’.[69] This would result
in a duty being ‘owed to all Aboriginal children’ fostered by the
APB, which would be inconsistent
with the provisions of the 1934
Act.[70] It was persuaded by Brennan
CJ’s observation in Breen v Williams that ‘it is erroneous to
regard the duty owed by a fiduciary to his beneficiary as attaching to every
aspect of the fiduciary’s
conduct’.[71] The court
enunciated policy-based reasons for excluding a broad duty: that the APB was
funded by Parliamentary appropriation and
‘could do only what its
resources permitted.[72] Further, a
wide-ranging duty was inconsistent with the purpose of the Aborigines Act
1934 (SA), and ‘would transform its role in a manner not contemplated
by the 1934 Act’.[73] The APB
might be subject to a fiduciary duty to Trevorrow, but only where the
‘particular situation was one that attracted
one of the recognised
fiduciary duties’ and was consistent with the 1934
Act.[74]
By establishing that
not all circumstances arising from the relationship between the APB and
Trevorrow ‘are to be resolved in
terms of a fiduciary duty’, the
court failed to deal effectively with any of them. It gave the analogy with
Gaudron and McHugh
JJ’s point in Breen v Williams that a doctor
does not have a fiduciary obligation to inform a patient of negligence or breach
of contract.[75] But in making this
analogy the court omits the distinguishing facts that Trevorrow was a minor and
confined in state care without
the resources or capacities akin to a patient who
has been wronged. The court finally reasoned that imposing a fiduciary duty
could
have resulted in the ‘oddity’ where the APB discharged its
duty by informing the plaintiff that it acted unlawfully and
assisting him
obtain legal advice, and then sat back and left him in
custody.[76] This circuitous logic
suggests that a fiduciary duty cannot arise because of the removal and the
removal is lawful because there
is no duty. It would be akin to a police officer
refusing a defendant the right to legal advice in relation to his/her custody
because
of the fact of his/her custody at the hands of the police. In the same
vein, the obligation to provide such advice to a removed child
who would be
detained for a decade would not appear to be an onerous burden. The Court,
however, found that, in failing to advise
Trevorrow of the wrongfulness of his
removal and provide him with legal advice, the State did not fail to observe any
fiduciary duties.
E Negligence
The Full Court further examined whether the APB
owed Bruce Trevorrow a duty of care to avoid causing him psychiatric injury, and
whether
this duty was breached when it placed Trevorrow with a foster family,
failed to adequately supervise this process and in due course
returned him to
his mother without due
preparation.[77]
In Williams
Appeal, policy reasons, principally concerns regarding floodgate litigation,
militated against the imposition of a duty of care in such institution-child
relationships.[78] The Court was
particularly attuned to possible economic consequences that may result from a
decision that renders the government
liable for acts committed against Stolen
Generation litigants. However, in Trevorrow, Gray J rejected the argument
that recognising a duty of care would expose the State to indeterminate
liability. This analysis substantially
deviates from the rather guarded
reasoning in Williams Appeal and Cubillo
Appeal.[79] Applying the
salient features test, Gray J found that the State owed Trevorrow a duty of care
in relation to his removal, placement
with a foster family and return to his
natural mother, a duty that was
breached.[80] Similarly, in
Lampard-Trevorrow, the Court was also prepared to find against the State
in negligence. Following the underlying principle identified by McHugh J in
Crimmins v Stevedoring Industry Finance Committee that ‘no common
law duty of care can be imposed on the statutory authority if to do so is...
forbidden by the relevant
Act,’[81] their Honours first
considered whether the imposition of a common law duty of care to avoid causing
harm to Trevorrow was inconsistent
with the 1934 Act. The Court concluded that
the imposition of such a duty would not be inconsistent with the obligations
under this
statutory scheme, as both promote the protection and welfare of
Aborigines and Aboriginal
children.[82] Section 10 of the 1934
Act namely requires the APB to act in the best interests of Aboriginal children,
reflecting the APB’s
role as the ‘legal guardian’ of these
children.[83] This obligation does
not impose duties that are contrary to the postulated common law duty to avoid
causing Trevorrow foreseeable
harm. The Full Court noted that ‘to require
that reasonable care be taken to avoid injury to the child... is not opposed to
or inconsistent with the statutory requirement. It complements
it’.[84]
Second, the Court
considered whether the harm caused to Trevorrow was reasonably foreseeable.
Their Honours concluded that the APB
knew of the risk of separating a mother and
child, as contemporaneous research indicated that this process may be
detrimental to
a child’s wellbeing. Although welfare officers at the time
may not have foreseen the specific harm caused by Trevorrow’s
removal,
they possessed a general understanding that failure to maintain contact with
Trevorrow’s natural family may cause
him harm—here, the Court relied
on the evidence adduced at trial, based on medical opinion, the oral evidence of
welfare officers
and a substantial body of literature, including publications
available during the period of the plaintiff’s removal. This evidence
confirmed the risk of harm to a child deprived of maternal care and affection
available during the 1950s and
1960s.[85] The Court concluded that
a reasonable person would have examined the likelihood of such harm occurring
and would have removed Trevorrow
from his mother only if remaining in her
custody would have presented a greater
risk.[86] However, the APB failed to
make reasonable enquiries into the circumstances of the Trevorrow family and the
infant’s physical
state before placing him with foster parents. By failing
to make these enquiries before removing him, the APB was found to be in
breach
of its duty of care.[87]
F
Limitation Period
As Trevorrow did not bring proceedings within the
specified time limit, a further issue for the Full Court was to determine
whether
the discretion to extend the period of limitation under s 48 of the
Limitation of Actions Act 1936 (SA) should have been exercised. Under s
48(1), a court may extend the time prescribed for a particular cause of action
as the justice
of the case may require. Under s 48(3)(b), an extension of time
may only be granted where facts material to a plaintiff’s case
are not
ascertained by him or her within time, or the plaintiff’s failure to
institute timely actions resulted from the conduct
of the defendant.
Statutory limitation periods applying to claims in negligence and wrongful
imprisonment may present a substantial obstacle to the
success of Stolen
Generation litigation. In Cubillo Trial, despite finding that the
plaintiff established the requisite conditions for a time extension to be
granted, the Federal Court ultimately
considered that there would be
overwhelming prejudice to the Commonwealth’s case if this discretion were
to be exercised.[8] In this case,
the ‘effluxion of time had so prejudiced the defence of the
Commonwealth that it could not obtain a fair
trial’.[88] This conclusion
was reached even though the Court made positive findings of fact regarding much
of Cubillo’s claim.[89] The
insufficiency of documentary evidence and testimony due to the passing of time
was particularly determinative in reaching this
decision.[90] Considerations of
fairness, certainty and public policy were also significant. The Court opined
that it is in the wider public interest
to promote finality in litigation and
that it would be undesirable to subject potential defendants to an indefinite
possibility of
legal action.
In contrast, the Court in
Lampard-Trevorrow upheld the decision to grant an extension of time under
s 48(1) of the Limitations of Actions Act 1936
(SA).[91] In considering the
discretion to grant an extension, the Court considered McHugh J’s
observation in Sola Optical Australia Pty Ltd v Mills that the purpose of
exercising such discretion is primarily ‘to eliminate the injustice a
prospective plaintiff might suffer
by reason of the imposition of a rigid time
limit within which an action was to be
commenced’.[92] The Court was
persuaded that any prejudice caused to the State by virtue of the inability of
criticised individuals to defend themselves
would be outbalanced by the
injustice that the plaintiff would experience if the claim were to be
time-barred. A significant factor
in this reasoning was that, as early as 1977,
the APB’s successor had information that the APB removed Trevorrow without
statutory
authority. Without the disclosure of this information, the Court
regarded Trevorrow’s failure to institute his action within
the time limit
as understandable, the APB having contributed to this
delay.[93] The Court further
considered it to be in the wider public interest that members of the Stolen
Generation are able to have their claims
decided by the judiciary and stressed
the importance of taking judicial notice of this ‘matter of national
concern and controversy’.[94]
It was this final consideration that ultimately ‘tilted the scales in
favour of the discretion being exercised to grant an
extension of
time’.[95]
G
Procedural Fairness
Although the doctrine of procedural fairness had not
been identified when the APB removed Trevorrow, the Full Court held that it
should
nevertheless be applied to the current
case.[96] In Kioa v West,
Mason J articulated the authoritative statement of this doctrine:
there is a common law duty to act fairly, in the sense of according
procedural fairness in the making of administrative decisions
which affect
rights, interests and legitimate expectations, subject only to the clear
manifestation of a contrary statutory
intention.[97]
Trevorrow’s
parents possessed a common law right to be heard prior to the APB making any
adverse findings affecting their son.
This right stemmed from their status as
Bruce’s natural parents as well as the significant interest they possessed
in continuing
to maintain custody of
him.[98] As was the case in
Annetts v McCann and J v Lieschke, the Court in
Lampard-Trevorrow considered that the obligation to afford procedural
fairness to parents of a child arises not only from their rights and interests
as parents, but also from their child’s
interests.[99] Trevorrow’s
parents’ right to be heard therefore also derived from Bruce’s
interest in them retaining custody of
him.[100] In recognising the
importance of providing a hearing in such circumstances, the Court referred to
Brennan J’s statement in
J v Lieschke that ‘it would offend
the deepest human sentiments as well as a basic legal principle to permit a
court to take a child form
its parents without hearing the
parents’.[101]
In the
present case, there was neither urgency that required the APB to act before
contacting Trevorrow’s parents, nor was there
substantial difficulty in
locating them to conduct a hearing. Therefore, although no formal hearing was
required, the Court found
that the APB did not fulfil its obligation to notify
Trevorrow’s parents of its intended arrangements and failed to provide
an
adequate opportunity for them to respond to the APB’s proposed course of
action, ultimately denying them their right to
procedural fairness.
PART
IV IMPLICATIONS: THE INTERPRETATION OF EVIDENCE AND A NEW RELATIONSHIP TO
HISTORY
In their book, Rights and Redemption, Curthoys, Genovese and
Reilly discuss the increasing role of historians as experts in Indigenous
litigation involving historical
wrongs. They point to the importance of the
disciplines of law and history to talk to one another in these
cases.[102] The expertise of
historians was drawn on, across the Stolen Generations cases discussed; it is
only in the Trevorrow Cases that a
contextualised understanding of the
historical evidence has legal effect. Previously, for instance, in Cubillo
Trial the Federal Court pointed to evidence that ‘showed that there
were people in the 1940s and 1950s who cared for the Aboriginal
people’
and were ‘acting in the best interests of the
child’.[103] It
held,
[T]he evidence does not deny the existence of the stolen generation and there was some evidence that some part Aboriginal children were taken into institutions against the wishes of their parents. However, I am limited to making findings on the evidence that was presented to this Court in these proceedings: that evidence does not support a finding that there was any policy of removal of part-Aboriginal children such as that alleged by the applicants; and if, contrary to that finding, there was such a policy, the evidence in these proceedings would not justify a finding that it was ever implemented as a matter of course in respect of these applicants.[104]
The Federal Court’s reading of the legal archive does not result in
a finding of the non-existence of the Stolen Generations,
but leads it to an
evidentiary problem: ‘not enough evidence to
decide’.[105] This problem
was compounded by the presumption in favour of the state’s own
archive.[106] It is also possible
to criticise the grounds upon which the finding was found. For example, van
Krieken is critical of the court
using the fact that there was no policy to
remove all children, and the lack of capacity to fully implement the policy, as
being
grounds for denying the existence of the policy and argues that ‘the
mere selective application of a policy does not render
its existence logically
impossible’.[107]
The
decontextualised reading of the evidence is brought into sharp relief in
relation to the issue of consent to the child removals
in Cubillo Trial.
The court construed a thumbprint, purportedly that of Cubillo’s mother, on
a document as evidence of parental consent to the
removal of her daughter. In
referring to consent in his construction of compliance with s 6,
O’Loughlin J noted that ‘there
was no way of knowing whether the
thumb mark on the ‘Form of Consent’ was [Mr Gunner’s
mother’s]; even on
the assumption that it was, there was no way of knowing
whether [she] understood the contents of the
document’.[108] However, the
court gave the government officers the benefit of doubt:
it is not beyond the realms of imagination to find that it was possible for a
dedicated, well-meaning patrol officer to explain to
a tribal Aboriginal such as
[Mr Gunner’s mother] the meaning and effect of the document. I have no
mandate to assume that [Mr
Gunner’s mother] did not apply her thumb or
that she, having applied her thumb, did not understand the meaning and effect of
the
document.[109]
Therefore,
the documentary record was found to prevail. This is surprising given that, on
its way to finding that the issue of consent
did not go ‘to the
heart’ of the trial,[110]
the Federal Court made a number of findings regarding the ways in which parental
consent was used to assist in, and even ‘produced’
by, removal
policies. The court rejected submissions made on behalf of the Commonwealth that
some or all of the parents had initiated
their children’s removal by
asking the Native Affairs Branch or Aborigines Inland Mission to provide their
children with a
better education and better standard of
living.[111] The court found that
evidence did not establish consent was generally obtained by the Native Affairs
Branch in the removal of the
children at Phillip Creek, of whom Mrs Cubillo was
one.[112] Although making no
formal finding on the matter, the court found that the evidence (including the
behaviour of the mothers, the evidence
of three Tennant Creek women and the
limited time available to explain the process of removal) suggested that
‘some, if not
all, of the children may well have been taken without their
mothers’
consent’.[113] In fact, the
court was ‘unable to make a finding that any of the mothers gave
their informed consents to the removal of their
children’.[114] Therefore,
the court rejected the Commonwealth’s argument that consent had been
generally given. However, where there was documentary
evidence of a thumbprint
he favoured the assumption that consent was informed. Although the court
demonstrated an appreciation of
historical context, it was not applied to
interpreting legal sources.
It is significant that the Federal Court examined
the operation of consent more generally than the circumstances surrounding the
particular
plaintiffs, and demonstrated that ‘consent’ was not an
untroubled concept. The court questioned the nature and quality
of consent, and
the power relationship that produced consent, by referring to evidence that
showed that the practices of the Director
in obtaining consent included
processes of ‘educating and preparing mothers’ for
separation.[115] The implication
here, of course, is that any final and formal consent can be seen as an
end-effect of these processes of coercive
‘education’. The court
also questioned whether sufficient consent can be deemed to have been given by
parents, considering
the stringent time constraints under which the information
was purportedly
provided.[116]
Ultimately,
however, the Federal Court found that the documents reflected Topsy’s
informed consent. It took for granted that
the relevant information was given in
the correct language, and the effectiveness of a government education program in
relation to
removals. By contrast, in the Trevorrow Cases, the South Australian
courts expressed a distrust concerning the documentary record
regarding consent,
and used a practice of interpretation that considered general practices relating
to consent (and its documentation)
in evaluating the particular document at
issue.[117]
It is significant
that, as discussed below, the problematic operation of consent, especially
questions relating to its authenticity,
has been noted by the courts, although
these observations had no legal effect prior to the Trevorrow Cases. These
problems have been
recorded widely by historians. Trish Luker researched the
processes by which problematic evidence was accepted in support of parental
consent in the Cubillo case—the choice and shaping of facts, and
the interpretation of
evidence.[118] The courts’
approach to interpreting documentary evidence in Cubillo failed to
adequately acknowledge the power disparity between the APB and Aboriginal
persons as well as the wider historical and social
context in which many
Aboriginal parents, namely Cubillo’s mother, were not literate in
English,[119] and were therefore
unlikely to have understood the content and implications of relevant
documentation.[120]
In
contrast, in the Trevorrow Cases, the courts demonstrated different views of
history and the role of state power, issues which
are bound up with the
interpretation of evidence. In determining the issue of consent, the Full Court
agreed with the trial judge
and interpreted the continued requests of
Trevorrow’s mother that her son be returned as an indication that the
requisite parental
consent was
absent.[121] The State of South
Australia submitted that the trial judge was wrong to find that neither parent
consented to Bruce Trevorrow’s
placement with Mrs Davies, and here it
relied mainly on missing documentation concerning the removal. The Court of
Appeal acknowledged
that documents were missing, but found that consent had not
been given – significantly, in doing so, it relied on evidence
concerning
general practices concerning consent, as well as evidence concerning
Trevorrow’s particular case. While the court
in Cubillo referred to
similar general practices, its finding in relation to Peter Gunner’s
mother’s consent was based on the documentary
evidence alone. The
significance of the court’s interpretation in Lampard-Trevorrow is
that it is an acknowledgment of the importance of context in the historical
operation and legal interpretation of consent. It
is significant that the Court
of Appeal was willing to look critically at documents presented as evidence, and
did not interpret
the absence of documents as necessarily favouring the
state’s position. The court rejected the state’s submission that
a
missing file may have contained the records of the almoner testifying to the
consensual removal of the plaintiff, arguing, through
an evaluation of the
context of the records, that the time constraints and role of the almoner made
it unlikely that the records
would include a document concerning
consent.[122] Of greater
significance was the Court’s questioning of the role of documentary
evidence. The Court found that this evidence
should not necessarily be
privileged:
There is no reason why, in principle, the documentary records should be
preferred to the oral evidence. Everything depends upon the
facts of the case.
In the present case it needs to be borne in mind that documentary records are
not to be assumed to be
reliable.[123]
This is of
great significance in Stolen Generations cases where the archives contain gaps,
and in which those documents that do exist need to be interpreted in the
context in which they were produced.
The Court in
Lampard-Trevorrow took into account historical context when
interpreting the facts to hand. Based on an analysis of correspondence
concerning other
cases, the Court found that ‘the requirement to obtain
parental consent was not always
observed’.[124] The Court
based this conclusion on a number of documents. A letter dated 12 August 1958
from the Secretary of the APB to the officer
in charge at the Oodnadatta Police
Station stated:
If the parents of these children have not already consented in writing for the United Aborigines Mission to care and control the children until a certain age, then I suggest that you endeavour to obtain the consent of the parents on the forms enclosed.
In confidence, you will certainly realise that in any case this consent form
is not a legal document, and should it be that the parents
remove the children
from the care of the Mission or the Board, no legal action could be taken to
regain control of the
children.[125]
Another
document, a letter of 16 October 1958 written by the Secretary of the APB to the
Superintendent of Aborigines Welfare in Victoria,
stated: ‘Again in
confidence, for some years without legal authority, the Board have taken charge
of many aboriginal
children’.[126] In a letter
dated 19 May 1960 to Pastor Eckermann, the Secretary of the APB stated:
For your information only I have to inform you that legally, I have no right to remove a child from its parents. However, in such cases I do so and where deemed necessary we refuse to allow the child to be returned to its’ parents without my consent.
If you so desire you can inform the mother of the child that it has been
placed in your Children’s Home at my direction and
cannot be released to
the mother without my written consent. You should add that I will not likely
consent to the children being
released until such time as the mother is properly
accommodated and able and willing to care for the child in a proper
manner.[127]
Here the Court
concluded:
the Secretary of the APB is informing Pastor Eckermann, ‘off the
record’ that on occasions he has removed and will remove
a child from its
parents, without parental consent, and will subsequently refuse to allow the
child to be returned to the parents,
unless satisfied that the proposed living
arrangements are
suitable.[128]
The last
paragraph quoted above ‘contemplates a bluff being used to enable the APB
to keep the child in question under its
control’.[129]
It is in
the context of this understanding that the Court of Appeal read a letter the
Board sent to Thora Karpany in 1958, which was
sent in response to her inquiry
about Bruce. The letter stated that Bruce was still undergoing medical
treatment, and the Court found
this statement, and the implication that Bruce
could therefore not be returned to her,
‘dissembling’.[130]
Even if Thora Karpany had consented to Bruce Trevorrow being fostered,
such consent did not legally authorise Bruce’s permanent removal –
and the
Secretary of the Board knew of Thora’s entitlement to have Bruce
returned to her. Here we have the Court explicitly acknowledging
the problematic
role of consent in the practice of removal – problems that were intimated
in Cubillo, but which in Lampard-Trevorrow are labelled as
‘a pretence of
power’.[131]
Although the
Appeal Court acknowledged the possibility that consent was obtained ‘by
one of the now unavailable witnesses, and
... placed in one of the missing
files’, the Court found that the trial judge’s conclusion of
non-consent was supported
by significant
evidence.[132] First, there was no
documentation of consent in Bruce Trevorrow’s file. Second, there was no
reliable reference to consent
being given in other documents. Third, there was
evidence that:
when necessary, in the perceived interests of a child, the [Board] would
place a child in an institution or with a foster family without
parental
consent, using a pretence of power (which undoubtedly would have been effective)
and, if appropriate, using an element of
bluff or
deception.[133]
This last
point is significant since here the South Australian Court of Appeal referred to
the general context of practices and policies
in which consent was made –
taking a very different approach to interpretation from that used in Cubillo
Trial, where the Federal Court noted the evidence of general policies but in
making its findings insisted on narrowing its focus to the
particular
circumstances of the
applicants.[134] In contrast, the
court in Lampard-Trevorrow found that, ‘The reliance on medical
advice in response to Thora Karpany’s letter to the [Board] of 25 July
1958 is consistent
with the use of a bluff to deflect her
request’.[135]
The Stolen
Generations cases challenge the courts to interpret doctrines of tort and equity
so that they recognise the historical
harms arising out of past policies and
practices.[136] This process or
conceptual re-thinking needs to occur in context—as
Lampard-Trevorrow demonstrates, it requires interpretive practices on the
part of the courts that involve a new relationship to evidence, history,
and the
significance of contemporary standards. These practices have consequences for
law’s role in determining responsibility
for historical harms. Australian
critical historiography has been central to the re-framing of key narratives in
law and the public
sphere, especially concerning the centrality of violence to
the formation of the Australian nation-state. These practices, Genevose
argues,
have revealed that ‘nation-building was inseparable from genocidal
intent’.[137] Genovese
positions Australian critical historiography as ‘a conceptual
“redemption”’,[138]
a concept that was developed by Curthoys et
al.[139] Key to redemption is
first, the recognition by the public sphere of a different role of the state in
regards to past violence and
dispossession of Indigenous Australians, from that
which had previously been accepted; and second, commitments by the public to
engagement,
‘reparative action and acceptance of moral culpability ... on
questions of accountability for the past in the
present’.[140]
In
Cubillo Trial, following a ‘painstaking examination of a large body
of historical material and oral
testimony’,[141] the court
asked whether the Commonwealth had acted unreasonably or otherwise through the
Aboriginal Protection Board, and concluded
that there was no evidence that they
had done so.[142] In arriving at
this decision, the court rejected evidence that there was social criticism of
the practice of child removal, instead
preferring the evidence of the
state’s own archive.[143]
Significantly, community standards were explicitly rejected as a source of
authority for this finding. Despite establishing that
those who removed the
children would ‘stand condemned by today’s
standards,’[144] and that
‘subsequent events have shown that they were
wrong,’[145] the court held
these contemporary standards were not relevant to deciding liability, as
‘it would be erroneous ... to hold
that a step taken in purported exercise
of a statutory discretionary power was taken unreasonably ... if the
unreasonableness appears
only from a change in community
standards.’[146] Ultimately,
the court found that there was insufficient evidence to determine a number of
questions about the removal policies.
In contrast, the South Australian
Supreme Court in Trevorrow found that standards of evaluation in the
present moment were relevant to deciding the issue of damages. The court noted,
as courts
had in earlier cases, including Kruger, (but to no legal
effect), the following:
The existence of the policy of removing Aboriginal children from their
families and the detrimental long term effects of that policy
on both those
removed and the wider Aboriginal community, is now widely recognized in the
community, and was previously the subject
of judicial
recognition.[147]
Community
standards became relevant in the award for exemplary damages, appropriate only
where the defendant’s conduct ‘calls
for manifest disapprobation by
the community and that it must attract something more than compensation
...’.[148] The Supreme Court
found that Trevorrow’s case gave rise to an award of exemplary damages,
based on the initial act of removal,
the failure to return Trevorrow to his
mother, and the state’s failure to inform Trevorrow both of the
circumstances of his
removal, and the rights arising from that
fact.[149] In doing so, the court
‘uses the damages award to reflect upon the concept of redemption inherent
in our own contemporary
standards’.[150] This
provides a way for the law to ‘acknowledge its role in political questions
and state practices instead of seeing them
as separate or
distinct’,[151] as they were
perceived in earlier Stolen Generations cases. The law can do this by taking
seriously a ‘democratic conception
of authority that compels the state,
through its law, as well as through international law, to take the idea of
contemporaneous standards—and
reparation—seriously’,[152]
as is done in the court’s award of exemplary damages. The Full Court of
the South Australian Supreme Court, in upholding the
trial decision to grant
Bruce Trevorrow an extension of time to bring his claim, held that ‘there
is a definite public interest
in persons like Bruce Trevorrow being able to have
their claims decided by a court’ and that ‘public interest, in this
context, is a question of
justice’.[153]
PART
V: THE ‘MYTH’ OF CONSENT
Consent has been a significant issue in
all Stolen Generations cases, but The Trevorrow Cases not only made consent
central to its
findings—it also raised questions about the problematic
nature of consent itself, problems that had been flagged in earlier
cases but
which had never affected the legal outcome previous to Trevorrow Cases. In the
Williams cases,[154]
consent was key to whether Joy Williams’ removal at birth constituted
false imprisonment; in Cubillo
Trial,[155] consent was not
determinative to claims in negligence due to the broad scope of the statute
granting the Welfare Board powers to
remove children, but was nonetheless argued
in defence by the Government, and found to be significant as a factor in
determining
the proper use of statutory power, and in the Trevorrow
Cases,[156] consent was
discussed both in relation to negligence and false imprisonment. Consent has
been a central issue in Stolen Generations
cases for two main reasons: first, it
formed part of the factual archive due to the widespread practice of officials
seeking parental
consent to expedite the process of removal; and second, the
state has used parental consent to bar actions in trespass or false
imprisonment.
Therefore, the procurement of consent has had a doubly wicked
effect, because it was used to both justify expedient removals and
then
subsequently put as a legal justification to deny compensation on the basis that
the mother had given away her child.
In Cubillo Appeal the Full
Federal Court displayed an approach to identifying consent that was less
favourable to the plaintiff. As discussed above,
the Court interpreted the
evidence in ways that failed to acknowledge the historical operation of consent
(and the associated creation
of documents) in the context of the removal of
children. The issue of consent to removal was at the heart of the
Commonwealth’s
legal argument against Lorna Napanangka Cubillo and Peter
Gunner. Essentially, the Commonwealth sought to recharacterise the act
of
removal as consensual and thereby authorised by the parents. In Lorna
Cubillo’s case, the court found that the issue determining
legislative
authority to remove her under s 6 of the Aboriginals Ordinance was not one of
consent. Rather, it was whether the Director
of Native Affairs held the opinion
that it was ‘necessary or desirable’ to undertake her ‘care,
custody or control’.[157]
Ultimately, the court acknowledged that the Director properly used his authority
under the legislation. In Peter Gunner’s case,
it was found that questions
relating to consent, were not the ‘correct question[s] to ask’ in
legally characterising
the act of removal – rather, the key question was
‘the reason for his removal’ – so that, ‘it would
not
matter by what persons or by what means that removal was effected, if his
removal was effected within the terms of ss 6 or 16
of the Aboriginals
Ordinance’.[158]
Nonetheless, parental consent was one matter that was taken into account in
assessing whether the legislation had been properly applied.
In
Lampard-Trevorrow, parental non-consent was important to both the factual
and legal findings. Factually, the court found no consent had been given.
Legally, non-consent became central to the court’s interpretation of the
state’s failure to properly execute its statutory
authority and assume
control of Trevorrow. The court considered whether s 10 of the 1934 Act
conferred upon the APB the power to
foster Aboriginal children without parental
consent and, if that right existed, whether it was validly exercised in the
present case.
The state contended that, by virtue of its role under s 10 as
‘the legal guardian of every Aboriginal
child,’[159] the APB was
authorised to remove Aboriginal children from their parents to protect the
children’s interests. The court was
persuaded that the purpose of the 1934
Act was to protect Indigenous people and provide them with financial and
educational assistance.[160]
However, in considering Gleeson CJ’s ration in Plaintiff S157/2000 v
The Commonwealth, that ‘courts do not impute to the legislature an
intention to abrogate fundamental rights or freedoms unless such an intention
is
clearly manifested by unmistaken and unambiguous
language,’[161] the Full
Court concluded that s 10 did not imbue the APB with the ability to remove
Aboriginal children from their parents without
consent.[162] Giving s 10 such a
wide interpretation would deprive Aboriginal parents of their right to the
custody of their children.
The Full Court found that it was the
state’s failure to acknowledge the parent’s authority (and therefore
the lack of
consent to Trevorrow’s removal) that led, in part, to the
state’s liability. The Court found that s 10 of the 1934 Act,
which
provided that the APB was ‘the legal guardian of every Aboriginal
child’ was ambiguous.[163]
It found that the legislation did not abrogate fundamental rights in the absence
of the manifestation of a clear intention to do
so.[164] Therefore, s 10 did not
give the Board the power to foster an Aboriginal child without the consent of
the child’s parents.
This finding of non-consent was fundamental: it
enabled the court to convey that the removal was forced, and provided a basis
for
a breach of law. Therefore, not only was there forcible removal, (a fact
that had been established in earlier
cases),[165] but this removal was
legally wrong.
Consent was also a central issue in the claim of false
imprisonment in the first Stolen Generations case, Williams
Trial.[166] The NSW Supreme
Court emphasised the mother’s consent to removal at the time of the birth
of her daughter, (although the fact
of this consent was contested by Joy), and
ruled against false imprisonment on that
basis.[167] The court stated that
there was no false imprisonment because the Welfare Board ‘had lawful
control over the plaintiff’
due to the consent of the
mother.[168] In reviewing the
case, the NSW Court of Appeal adverted to the problematic nature of consent, but
chose to treat consent as proven
by virtue of the documentary evidence of the
application. The court held:
One part of the plaintiff’s case at trial depended on the proposition
that she had been removed from her mother without her
mother’s consent. It
was this which underlay the claims of false imprisonment ... This part of the
case failed because ...
the plaintiff was lawfully admitted to the control of
the Board on the application of her mother
...[169]
The National
Inquiry into the Separation of Aboriginal and Torres Strait Islander Children
from Their Families revealed the hollow
meaning of parental consent in child
removal. Consent was a veil for the forced removal of Aboriginal children and
was uninformed
if not coerced. In its report, Bringing them Home, a
Tasmanian Stolen Generations survivor described his mother’s capacity to
consent in the following way: ‘[Mum] could
not read or write, and
obviously would not have understood the implications of what she was
signing’.[170] The Report
found that ‘mothers who had just given birth were coerced to relinquish
their newborn babies’.[171]
The Report identified that acquiring consent operated to circumvent official
proof of neglect. Bringing them Home noted, ‘If parents could be
‘persuaded’ to consent to the removal of their children the Board
did not have to show
that a child was neglected or
uncontrollable’.[172] When
Indigenous parents refused to consent, the Aboriginal and Welfare Boards
overpowered their agency. Parents ‘were told
they would have to leave the
stations and would be denied
rations’.[173] Police
officers told young mothers that ‘if they did not consent to the adoption
of their babies the father of the child would
be prosecuted for carnal
knowledge’.[174] Alongside
this was an ideological campaign to make parents feel guilty that they could not
offer them the opportunities of the ‘outside
world’.[175] This is despite
contemporary evidence and theory that children who were not removed performed
much better in life than those who
were removed.
The significance of
narratives of consent to the achievement of legal and social justice goes beyond
the success of any single claim,
as significant as such a claim may be. Saidiya
Hartman suggests that there is a relationship between consent and subjection,
and
that the State’s use of consent in dealing with the subjected may act
to disguise the ‘condition of violent domination’
that actually
operates between subjector and
subjected.[176] Writing about the
legal context of racial subjugation during slavery and its aftermath in the
United States of America, Hartman argues
that consent became ‘intelligible
only as submission’.[177] In
the Australian context, non-‘whiteness’ has historically been a
point of reference for structural inferiority in Australia,
according to Ghassan
Hage.[178] Yet the law nonetheless
assumes consent as capable of being equally afforded by Indigenous and
non-Indigenous people. The historical
impossibility of consent in the context of
forced subjection is usually not disentangled, explored, or even
‘seen’ by
the courts.
In Stolen Generations cases, assumptions
that ‘whites’ could better care for children underlie the
implication of parental
complicity in the Indigenous child removals. These
assumptions were taught to and at times appropriated by Aboriginal parents
–
who were then seen as succumbing to the system’s logic. As Hartman
suggests, power can become defined by these manipulations
to present a picture
of reciprocation, rather than acts of
domination.[179] It allowed the
state to be presented as a benevolent institution rather than a terrorising one.
But there is a further sinister side
to the domination, which is always on guard
when manipulations falter. When parents failed to comply with the removal of
their children,
they would attract reprisals from state agents – with
consequences that included being reported to police, losing employment
or
experiencing physical
violence.[180]
Although courts
surveyed and sometimes accepted evidence of the problematic operation of consent
in Stolen Generations cases, prior
to the Trevorrow Cases, they essentially
treated consent as an individual act freely and voluntarily given. The use of
consent in
this way turned the state’s act of removal into a parental act,
thereby transforming ‘relations of violence and domination
into those of
affinity’.[181] The fiction
of consent suggests that the powerless had agency and strength, and that there
is an ‘ostensible equality between
the dominant and the
dominated’,[182] while at
the same time concealing the actual powerlessness of the subjected. These
judicial narratives further impute that Indigenous
peoples are unwilling to care
for their own children, and reaffirms the fiction that the caring and nurturing
of children is the
domain of ‘whites’, thereby undermining the role
of the Indigenous family. But here there is a further irony –
that
Aboriginal consent is predicated on the presumption of civility, and yet
Aboriginal people are denied this virtue because of
their role as neglectful
parents.
The nature of the evidence of consent, and how consent was acquired,
have been questioned by academics and legal practitioners. Anna
Cody, who was a
solicitor on the case, commented that Joy Williams ‘was taken away from
her mother when she was a few hours
old. Any mother who’s had a baby would
question exactly how much she could consent to giving a baby away when
she’s just
a few hours
old’.[183] Chris Cunneen and
Julia Grix argue that the NSW Supreme Court’s comment that the mother may
have forgotten whether she had
consented reveal an ‘extraordinary lack of
insight into the issues of consent and the power of the [Board] over Aboriginal
persons’.[184] Another issue
that was raised by the court to inculcate the mother in the removal was that the
mother did not attempt to release
the child from foster care. This presumes that
she knew that she had this option available to her, had the material means to
pursue
such a course, and was sufficiently uncowered by the system act in such a
way. It discounts the power of the state over Aboriginal
people. The court
stated:
I further find as a fact that the plaintiff’s mother at no time between 1942 and 1960 made application to the [Board] or, otherwise sought to have the plaintiff released from the [Board’s] control, or sought her restoration to her care within the meaning of ... the Act, nor was any discharge of the plaintiff sought at any time pursuant to ... the Act.
... [This] is consistent with a view that she did not wish the child’s
status or relationship viz the Board to change ... nor
did she wish to have the
child returned to her
care.[185]
In contrast, the
Supreme Court of South Australia at trial accepted Bruce Trevorrow’s claim
of false imprisonment on the basis
that there was no parental or child consent.
The Court held:
By being placed with [his foster mother], the plaintiff’s will was
completely overborne. Given the plaintiff’s age at
the time of the
removal, he did not consent; neither did his parents. The plaintiff was
imprisoned, and the State, through its agents
and emanations, caused the
imprisonment.[186]
The
Trevorrow Cases challenge the operation of consent in
practice—demonstrating that it was frequently quite meaningless, and
that
the documentary record concerning consent should not necessarily be trusted.
However, the framework of liability still relies
on consent, with its attendant
problems regarding agency and good/bad parenting, in determining the success of
the claim. Because
of the nature of removal policies, as well as the legal
categories under consideration, consent remains as one of the ‘stories
that had normalized state intervention yet at the same time ignored the
subjectivity and experience of Indigenous people
altogether.[187] This means that
claimants must still contend with this myth, and may have difficulty
establishing claims where the documentary record
does not demonstrate protests
or the absence of consent on the part of their parents; or where the record
demonstrates formal consent,
despite significant evidence demonstrating problems
with the meaningfulness of such formal consent. The presence of such myths is
a
key reason why the common law may continue to be a problematic site for the
determination of responsibility for historical harms—one
great advantage
that a reparations scheme would provide would be a new framework, and a new
language of responsibility, which take
account of these tangled myths and
histories, and law’s own complicity with these.
V. CONCLUSION:
FUTURE DIRECTIONS IN STOLEN GENERATIONS LITIGATION
The Trevorrow Cases embody
a new judicial reading of history and evidence in the Stolen Generations
litigation. The extent to which
this resulted in findings in favour of
compensation is offset by Bruce Trevorrow’s experience, which made him in
many ways
an ‘ideal
plaintiff’.[188] Although
Julian Burnside, counsel for Bruce Trevorrow, emphasised that the outcome was
not dependent upon the particular facts of
the case, but is of relevance to
future Stolen Generation litigation
generally,[189] a significant
factor contributing to the success of this particular case lay in
Counsel’s ability to produce substantial evidence
regarding
Trevorrow’s removal. For many Indigenous claimants, as was notably the
case in Cubillo and Williams, the establishment of documented
evidence often presents a considerable challenge to the courts’ ability to
determine critical
findings of fact. Cockayne notes that Stolen Generations
litigation ‘demand[s] the provision of evidence as to the consent
and
intentions of individuals in times now far removed, in cases where records are
often scant’.[190]
Nonetheless, the contextual reading of the legal archive and understandings
of general practice were key to the judiciary’s
treatment of consent in
the Trevorrow Cases. In previous cases, difficulties stemmed not only from such
lapses in time since the
occurrence of the tort, but also from the courts’
preference for written documentary evidence, which is ‘alien to the
oral
tradition in Aboriginal
cultures’.[191] The
Trevorrow Cases may signal a shift away from this onerous evidentiary burden and
open the door for prospective successful litigation.
The real test will be
whether courts apply the Trevorrow Cases to cases where formal consent is
present. Would a post-Lampard-Trevorrow Federal Court treat Topsy’s
thumbprint as a product of state control, or would it once again take it on face
value and denote
Lampard-Trevorrow an exceptional status? Would a
post-Lampard-Trevorrow NSW Supreme Court now recognise Joy Williams as a
member of the Stolen Generations notwithstanding her mother’s consent
noted
in the documentary
record?[192] If the effect of
Lampard-Trevorrow in future cases is to disavow the operation of
meaningful consent in the context of Stolen Generations removals, this would go
a
long way in providing meaningful legal outcomes for Indigenous plaintiffs.
Under such an approach, the formal consent of Topsy’s
thumbprint would be
interpreted in the context of its historical production, and doubted as evidence
of meaningful consent.
It is yet to be resolved whether the provision for a
more contextualised understanding of the removal of children in the Trevorrow
Cases is of significant precedential value or merely symbolic importance for
potential Stolen Generation litigants. Either way, the
Trevorrow Cases present
opportunities for new judicial narratives on the Stolen Generations; ones that
involve Aboriginal child policies
being recognised as more than the sum of
documentary evidence and thumbprints. Where judicial imaginings capture the
‘theft’
of Aboriginal children ‘from their culture, their
history and their community’ at the hands of a colonising
policy[193] the common law will be
best positioned to adjudicate the historical suffering of the Stolen
Generations. Such adjudication will provide
closure for Stolen Generations
litigants and an opening for the healing process.
[1] South Australia v
Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331
(‘Lampard-Trevorrow’).
[2]
Trevorrow v South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136
(‘Trevorrow’).
[3]
The Full Court reversed the trial judge’s findings in two major respects:
first, it found there was no false imprisonment in
the circumstances (at [307])
and second, that no fiduciary duty was owed to Bruce Trevorrow (at
[335]-[342]).
[4] Ann Genovese,
‘Metaphor of redemption, myths of state: Historical accountability in
Luhrmann's Australia and Trevorrow v South Australia’ (2011) 20
Griffith Law Review 67;
Pam O’Connor, ‘History on Trial:
Cubillo and Gunner v The Commonwealth of Australia’ [2001] AltLawJl 7; (2001) 26
Alternative Law Journal 27, 30. See also Chris Cuneen and Julia Grix,
‘The Limitations of Litigation in Stolen Generations Cases’
(Research Discussion
Paper No 15, Australian Institute of Aboriginal and Torres
Strait Islander Studies, 2004); and Robert van Krieken ‘Is Assimilation
Justiciable? Lorna Cubillo and Peter Gunner v Commonwealth’ [2001] SydLawRw 10; (2001) 23(2)
Sydney Law Review 239.
[5]
Genovese, above n 4, 74
[6]
O’Connor, above n 4, 30. See also Cuneen and Grix, above n 4; van Krieken,
above n 4.
[7] National Inquiry
into the Separation of Aboriginal and Torres Strait Islander Children from Their
Families, Bringing them Home: Report of the National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their
Families (Sydney: Human Rights and Equal Opportunity Commission, 1997), 6,
8, 56. See also: Andrea Durbach, ‘Repairing the Damage: Achieving
Reparations for the Stolen Generations’ (2002) 27 Alternative Law
Journal 262.
[8] National
Inquiry, above n 7, recommendation
3.
[9] Antonio Buti, ‘The
Stolen Generations Litigation Revisited’ [2008] MelbULawRw 13; (2008) 32 Melbourne University
Law Review 382, 383.
[10]
Ibid, 420.
[11] Kruger v The
Commonwealth [1997] HCA 27; (1997) 190 CLR 1
(‘Kruger’)
[12]
Section 6 of the Ordinance gave power to the Chief Protector, (and under
regulations made pursuant to section 67, all Protectors),
to undertake the care,
custody or control of Aboriginal people where it was in their best interests;
section 7 made the Chief Protector
the legal guardian of every Aboriginal person
and every ‘half-cast’ child. Section 16 provided powers for the
Chief Protector
to remove any Aboriginal or ‘half-cast’ to an
institution or Aboriginal
reserve.
[13] Kruger,
above n 11, 40 (Brennan CJ), 85-6 (Toohey J), 176 (Gummow
J).
[14] Ibid, 41 (Brennan CJ),
53 (Dawson J), 79 (Toohey J), 104 (Gaudron J), 141 (McHugh J), 161 (Gummow J).
[15] Ibid 45 (Brennan CJ), 70
(Dawson J), 142 (McHugh J), 157 (Gummow
J).
[16] Ibid 44-5 (Brennan CJ),
68 (Dawson J), 114 (Gaudron J), 155 (Gummow
J).
[17] Ibid 70-1 (Dawson J), 88
(Toohey J), 107 (Gaudron J), 144 (McHugh J), 158-189 (Gummow
J).
[18] Kruger, above n
11, 44-5 (Brennan CJ), 63-8 (Dawson J), 142 (McHugh J), 153-9 (Gummow
J).
[19] Ibid 46 (Brennan CJ), 93
(Toohey J), 125-126 (Gaudron
J).
[20] Gaudron J at 107 found
it possible that the grant of legislative power in s 122 of the
Constitution does not ‘authorise gross violations of human rights
and dignity contrary to the established principles of the common
law.’
[21] Kruger,
above n 11, 36 (Brennan CJ).
[22]
Ibid 36-7 (Brennan CJ) and 52 (Dawson
J).
[23] Cubillo v The
Commonwealth [No 2] [2001] FCA 887; (2000) 112 FCR 1 (‘Cubillo Trial’). A
number of aspects favourable to the applicants were reversed on appeal, but all
adverse findings were affirmed: Cubillo v The Commonwealth [2001] FCA 1213; (2001) 112 FCR
455 (‘Cubillo
Appeal’).
[24]
Cubillo Trial, above n 23,
2.
[25] Cubillo v
Commonwealth [1999] FCA 518; (1999) 89 FCR 528 (‘strike out application’) [1999] FCA 518; (1999)
89 FCR 528, 599 (O’Loughlin J).
[26] Cubillo Trial, above
n 23, 483 (O’Loughlin
J).
[27] Ibid, 103-8;
358.
[28] Ibid,
483.
[29] Ibid, 148,
150.
[30] Transcript of
Proceedings, Cubillo v Commonwealth (High Court of Australia, Gleeson CJ,
3 May 2002).
[31] Williams v
The Minister, Aboriginal Land Rights Act 1983 and Anor [1999] NSWSC 843
(Williams Trial). This finding was upheld on appeal: Williams v The
Minister Aboriginal Land Rights Act 1983 and New South Wales [2000] NSWCA
255 (Williams
Appeal).
[32]
Williams Trial, above n 31,
[32].
[33] Ibid,
[160].
[34] Trevorrow,
above n 2, 393.
[35]
Ibid.
[36] Ibid,
216-50.
[37] Ibid,
239.
[38] Genovese, above n 4,
82.
[39] Trevorrow, above
n 2, 239.
[40] Ibid,
244.
[41] Ibid,
248.
[42] Buti above n 9,
413.
[43]
Ibid.
[44] Cubillo Appeal,
above n 23, 529.
[45] For
example: Paul Finn and Kathryn Smith, ‘The Citizen, The Government and
‘Reasonable Expectations’’ (1992) 66 Australian Law Journal
139, 145; van Krieken, above n
4.
[46] Buti, above n 9,
397.
[47]
Lampard-Trevorrow, above n 1,
[275].
[48] Trevorrow,
above n 2, 216-239, 335-373. See also Buti, above n 9,
415.
[49] See Buti, above n 9,
406.
[50] Cubillo Trial,
above n 23, 147-8 (O’Loughlin J); Williams (time extension appeal)
(1994) 35 NSWLR 497, 506-7 (Kirby P). See also: Cunneen and Grix, above n 4,
27.
[51] Buti, above n 9,
416.
[52] Ibid,
400.
[53] (1994-1995) 185 CLR
307, 347.
[54] (1998) 196 CLR
329, 344.
[55]
Lampard-Trevorrow, above n 1,
[263].
[56] Ibid,
[265].
[57] Trevorrow,
above n 2, 338-339.
[58] Ibid,
340-343.
[59] (1919) 122 LT 44,
53 (Atkin LJ)
[60] [1988] UKHL
13.
[61]
Lampard-Trevorrow, above n 1, [290],
[292].
[62] Ibid,
[285].
[63] Ibid,
[284].
[64] Ibid,
[285].
[65] Ibid,
[298].
[66] Williams
Trial, above n 31, 293.
[67]
[2007] SASC 285; (2007) 98 SASR 136, [1006].
[68]
Ibid, [337].
[69] Ibid,
[333].
[70] Ibid,
[337].
[71] (1995-1996) 186 CLR
71, 82.
[72] Ibid,
[337].
[73]
Lampard-Trevorrow, above n 1,
[337].
[74] Ibid,
[335].
[75] Ibid,
[332].
[76] Ibid,
[343].
[77] Ibid,
[363].
[78] Williams
Appeal, above n 31,
[160]-[162].
[79] Buti, above n
9, 406.
[80] Trevorrow
[2007] SASC 285; (2007) 98 SASR 136, 366.
[81]
[1999] HCA 59; (1999) 200 CLR 1, [114].
[82]
Lampard-Trevorrow, above n 1,
[367].
[83] Aborigines Act
1934 (SA) s 10.
[84]
Lampard-Trevorrow, above n 1,
[370].
[85] Ibid,
[406].
[86] Ibid,
[412].
[87] Ibid,
[413].
Cubillo Trial, above n 23, [1421]. See also, Cubillo
Appeal, above n 23,
[295].
[88] Cubillo Trial,
above n 23, [439].
[89] John
Rush, ‘Cubillo and Gunner revisited: A Question of National
Character’ (2008) 12 Australian Indigenous Law Review 25,
29.
[90] Cubillo Trial,
above n 23, [1400].
[91]
Lampard-Trevorrow, above n 1,
[463].
[92] [1987] HCA 57; (1987) 163 CLR 628,
635, quoted in Lampard-Trevorrow, above n 1,
[426].
[93]
Lampard-Trevorrow, above n 1,
[442].
[94] Ibid,
[460].
[95] Ibid,
[462].
[96] Ibid,
[227].
[97] [1985] HCA 81; (1985) 159 CLR 550,
584, quoted in Lampard-Trevorrow, above n 1,
[227].
[98]
Lampard-Trevorrow, above n 1,
[230].
[99] [1990] HCA 57; (1990) 170 CLR 596;
(1986-1987) 162 CLR 447.
[100]
Lampard-Trevorrow (2010) 106 SASR 33,
[238].
[101] [1987] HCA 4; (1986-1987) 162
CLR 447, 458, quoted in Lampard-Trevorrow, above n 1,
[233].
[102] Ann Curthoys, Ann
Genovese and Alexander Reilly, Rights and Redemption: History, Law and
Indigenous People (Sydney: UNSW Press, 2008),
223–4.
[103] Cubillo
Trial, above n 23,
483.
[104] Ibid,
357.
[105] van Krieken, above n
4, 246.
[106] Ibid,
245-6.
[107] Ibid,
246.
[108] Cubillo
Trial, above n 23, 344.
[109] Ibid.
[110] Ibid,
262.
[111] Ibid,
263.
[112] Ibid,
251.
[113] Ibid,
265.
[114] Ibid, 251, emphasis
ours.
[115] Ibid,
179.
[116] Ibid,
265.
[117]
Lampard-Trevorrow, above n 1; Trevorrow, above n
2.
[118] Trish Luker,
‘Intention and Iterability in Cubillo v Commonwealth’ (2005)
84(1) Journal of Australian Studies 84
35.
[119] Cunneen and Grix,
above n 4, 14.
[120] Buti,
above n 9, 416.
[121]
Lampard-Trevorrow, above n 1, [47].
[122] Ibid,
[88].
[123] Ibid, [84]. Here,
as in excerpts discussed below, the court was relying on findings of fact at
first instance.
[124] Ibid,
[126].
[125] Ibid,
[126].
[126] Ibid,
[127].
[127] Ibid,
[128].
[128]
Ibid.
[129]
Ibid.
[130] Ibid,
[126].
[131] Ibid,
[133].
[132] Ibid,
[132].
[133] Ibid,
[133].
[134] Cubillo Trial,
above n 23, 179.
[135]
Lampard-Trevorrow, above n 1,
[133].
[136] See Cuneen and
Grix, above n 4, 5.
[137]
Genovese, above n 4, 71.
[138]
Ibid, 72.
[139] Curthoys et al,
above n 103.
[140] Genovese,
above n 4, 72.
[141] van
Krieken, above n 4, 239.
[142]
Cubillo Trial, above n 23,
70.
[143] See Curthoys et al,
above n 103, 134-166.
[144]
Cubillo Trial, above n 23,
482.
[145] Ibid,
483.
[146] Ibid, above n 23,
96-98, quoting Brennan CJ in Kruger, above n 11, 36-7 and Dawson J at
52.
[147] Trevorrow,
above n 2, 239, referring to the judicial recognition in Kruger, above n
11, 40.
[148] Trevorrow,
above n 2, 390, citing Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298
at 113.
[149] Trevorrow,
above n 2, 393.
[150] Genovese,
above n 4, 83.
[151] Ibid,
85.
[152]
Ibid.
[153]
Lampard-Trevorrow, above n 1,
[461].
[154] Williams
Trial, above n 31. Williams Appeal, above n
31.
[155] Cubillo Trial,
above n 23.
[156]
Trevorrow above n 2; Lampard-Trevorrow, above n
1.
[157] Cubillo Appeal,
above n 23, 262, 263.
[158]
Ibid, 352.
[159] Aborigines
Act 1934 (SA) s 10.
[160]
Lampard-Trevorrow, above n 1,
[196].
[161] (2003) 211 CLR
476, [30].
[162]
Lampard-Trevorrow, above n 1,
[196].
[163] Ibid,
[222].
[164] Ibid,
[223].
[165] See, for example,
Cubillo Trial, above n 23.
[166] Williams Trial,
above n 31. Williams Appeal, above n
31.
[167] The Supreme Court
relied on s 7(2) of the Aborigines Protection Act 1909 provided:
‘The board may on the application of the parent or guardian of any child
admit such child to the control of the board’:
Williams Trial,
above n 31, [26].
[168] Williams Trial,
above n 31, [142]. The Court stated, ‘My finding is that the AWB
considered the mother's application to give up control of
the plaintiff to its
control, and having done so, admitted the child to its control. I find that
there was not any removal by the
Board to the plaintiff, in the sense of taking
the child against the will of the mother. The plaintiff was taken into the
AWB’s
control because the mother did not want the child, could not keep
the child and asked the AWB to take control of her: see s 7(2)’:
Williams Trial, above n 31,
[26].
[169] Williams Appeal,
above n 31, [58].
[170]
National Inquiry, above n 7, 86, quoting ‘Confidential evidence 384,
Tasmania’.
[171] National
Inquiry, above n 7, 41.
[172]
Ibid, 40.
[173] Ibid,
51.
[174] Ibid,
56.
[175] Ibid,
7–8.
[176] Sadiya V.
Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making In
Nineteenth-Century America (New York: Oxford University Press, 1997),
85.
[177] Ibid,
40.
[178]
‘Whiteness’ is a cultural historical construct (Ghassan Hage,
White Nation: Fantasies of White Supremacy in a Multicultural Society
(Sydney: Pluto Press 1998), 58–9), which involves ‘both a European
monopolisation of ‘civilised humanity’
and a parallel monopolisation
of Whiteness as its marker’ (Ghassan Hage, Against Paranoid
Nationalism: Searching for Hope in a Shrinking Society (Sydney: Pluto Press,
2003), 49–50).
[179]
Hartman, above n 177, 89.
[180]
National Inquiry, above n 7, 6, 8,
56.
[181] Hartman, above n 177,
88.
[182]
Ibid.
[183] Quoted in Annie
White, ‘Joy Williams loses her Stolen Generations Case’, The
World Today: ABC Local Radio, 26 August 1999, accessed on 30 April 2012,
http://www.abc.net.au/worldtoday/stories/s46829.htm.
[184]
Cuneen and Grix, above n 4,
24.
[185] Williams
Trial, above n 31,
[179].
[186] Trevorrow,
above n 2, 982.
[187] Genovese,
above n 4, 74.
[188] Buti,
above n 9, 420.
[189] Julian
Burnside, ‘Stolen Generation: Time for a Change’ (2007) 32
Alternative Law Journal 131,
132.
[190] James Cockayne,
‘More Than Sorry: Constructing a Legal Architecture for Practical
Reconciliation’ [2001] SydLawRw 23; (2001) 23 Sydney Law Review 577, 581. Also see:
Buti, above n 11, 415.
[191]
Chris Cunneen and Julia Grix, above n 4,
27.
[192] The refusal of such
recognition was noted in: Williams Trial, note 31,
[5].
[193] van Krieken, above n
4, 240.
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