Can the common law adjudicate historical suffering?

• Jurisdiction: Australia
• Author: Van Rijswijk, Honni
• Date: 01 August 2012

[The case of South Australia v Lampard-Trevorrow opens up key questions about the capacity and willingness of the common law to adjudicate past acts of the state. This article considers the significance of the appeal decision by examining what distinguishes the case from past, unsuccessful claims and considers 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 practice of historical and evidential interpretation that is different from previous cases, and how this is particularly important regarding the issue of parental consent. We argue that the role and interpretation of consent have broad ramifications for law's potential to adjudicate responsibility for historical harms. We also argue that the findings in relation to false imprisonment and fiduciary duty limit the potential of the Trevorrow cases. In particular, we examine, and lament, the Full Court's more limited reading of false imprisonment in contrast to the trial judgment.]

CONTENTS I Introduction II The Context of Lampard-Trevorrow in Relation to Previous Stolen Generations Litigation III Issues on Appeal A The State's Liability for Misfeasance B False Imprisonment C Breach of Fiduciary Duty D Negligence E Limitation Period F Procedural Fairness IV Implications: The Interpretation of Evidence and a New Relationship to History V The 'Myth of Consent'. VI Conclusion: Future Directions in Stolen Generations Litigation I INTRODUCTION

The case of South Australia v Lampard-Trevorrow ('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 Full Court of the Supreme Court of South Australia dismissed the State's appeal against the decision of Gray J in Trevorrow v South Australia [No 5] ('Trevorrow'), (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 by examining what distinguishes the case from past, unsuccessful claims and considers too 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 practice of historical and evidential interpretation that is different from previous cases and how this is particularly important regarding the issue of parental consent. We argue that the role and interpretation of consent have broad ramifications for law's potential to adjudicate responsibility for historical harms suffered by members of the Stolen Generations.

There has been significant criticism of the ways in which courts have interpreted the operation of state power in relation to the Stolen Generations, with courts 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 ('Trevorrow cases') signify a break in the law's seeming incapacity to adjudicate historical suffering. This break raises the possibility that the common law has now become a site available for the redress of historical injuries suffered by members of the Stolen Generations and gives rise to a number of important questions: 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 the common law's role in the future adjudication of historical harms. We argue that, in some ways, Lampard-Trevorrow opens doors for claimants, given the Full Court's interpretation of the documentary record and its reading of the legislative framework under which Bruce Trevorrow was removed from his parents. In other ways, the case closes doors for claimants, first because of the Court's unwillingness to find false imprisonment or a breach of fiduciary duty arising from the facts, and second because, while the Court criticises the interpretation of parental consent in past cases, the success of the claim nevertheless relies on proof of the absence of consent.

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, and consideration of the impact of these specificities on the outcomes in the Trevorrow cases. Part III provides a critical commentary on the appeal decision. 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. We argue that the findings in relation to false imprisonment and fiduciary duty limit the potential of the Trevorrow cases. In particular, we examine, and lament, the Full 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. Second, it is 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 burden that make these claims so difficult for claimants in this area is reversed in the case of false imprisonment. We also critique the failure of the Full Court to find that there was 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 the Trevorrow cases in the history of the common law's adjudication of claims relating to the Stolen Generations. In this respect, the Court, at trial and on appeal, demonstrates a willingness to examine evidence critically and contextually (including a critical examination of standards in operation at the time the policies were administered) and a 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 an expansion of the common law's role in 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 not only determine 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 that gave effect to this policy, consent has become a 'myth of the state', one of the 'stories that ... normalised state intervention yet at the same time ignored the subjectivity and experience of Indigenous peoples 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, where the law has distanced itself from the role of adjudicating historical wrongs of the state. In some ways, the key issue now concerns the willingness of the common law to adjudicate historical suffering, and how these possibilities are constrained by precedent. These points naturally raise the normative question of whether the law should become a dominant site for the adjudication of historical injuries--the injuries of colonisation. A number of people have commented on this question, one concluding that '[l]itigation 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 also by including apologies, 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. A reparations scheme 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, as well as the historical and contemporary complicity of law and society, without relying on the problematic myths that are still part of common law adjudication.

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) signified a 'markedly different ... approach and outcome to what...