Can the Common Law Adjudicate Historical Suffering?

Article excerpt

[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. …