Linda Kirk (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to draw the Senate’s attention to a landmark decision of the Supreme Court of South Australia concerning an Indigenous Australian, Mr Bruce Trevorrow. On 1 August this year, the Supreme Court delivered a decision which found that Bruce Trevorrow had been wrongfully removed from his family when he was a baby. Justice Gray of the Supreme Court awarded Mr Trevorrow over half a million dollars in compensation. This was the first decision of its kind in Australia and the first formal recognition by a court that an Indigenous Australian had been wrongfully removed from their family.

Bruce Trevorrow was born to Ngarrindjeri parents, whose traditional land is along the Coorong in the south-east of South Australia, near a town called Meningie. The Supreme Court’s decision comes 10 years after the Bringing them home report was tabled in this parliament in May 1997. The report revealed that at least 100,000 Indigenous children were forcibly removed from their families. The report brought to the attention of many Australians the experiences of what have become known as the stolen generation. To this day, this federal government has refused to apologise to this group of Indigenous Australians or to acknowledge any responsibility for what occurred. Following the refusal of the government to offer compensation to this group, some members of the stolen generation instigated their own private legal action against state governments. Until the decision of Justice Gray in the matter of Trevorrow v State of South Australia in August this year, these actions were unsuccessful.

Bruce Trevorrow was born in Adelaide in November 1956. Although he suffered health problems as an infant, he returned home to live with his mother, Thora Karpany, and his father, Joseph Trevorrow, and siblings at One Mile Camp, a former Aboriginal settlement 150 kilometres from Adelaide. Christmas Day 1957 was a poignant day for the Trevorrow family. Bruce’s father, Joe Trevorrow, was caring for the family while Thora, Bruce’s mother, was away visiting friends. Bruce, who was then aged 13 months, was suffering stomach pains and chronic diarrhoea. His father, Joe, became worried and approached local police to call for an ambulance, but they were unable to help him. Joe then approached a neighbour who owned a car and asked if they would be able to transport Bruce to hospital. They agreed to do so. Unbeknownst to Joe, he would not see his young son again.

Bruce was taken to the Adelaide children’s hospital by his neighbours, the Evanses. Hospital records show that Bruce recovered quickly from his ailment and that by New Year’s Eve he was doing well. However, the hospital admission paperwork recorded that Bruce was a ‘neglected child without parents’. On 6 January, just a fortnight after Bruce’s admission to hospital, Martha Davies and her husband were authorised by the Aborigines department to foster young Bruce. Bruce was not returned home to his parents. It was in the home of Martha Davies and her husband that Bruce Trevorrow spent the first 10 years of his life. Neither of Bruce’s birth parents were informed about the decision to foster him and certainly neither of them consented to it. Bruce’s mother, Thora, awaited the return of her son and made attempts to inquire about his welfare, but her inquiries were dismissed by authorities. As a consequence, Bruce was raised by Martha Davies and her husband, together with their daughters and son.

In 1963 changes to state legislation made the Aborigines Protection Board’s legal guardianship over Aboriginal children ineffectual and gave guardianship to natural parents. But Bruce’s mother was never informed about these changes and it was not until 1966, when she contacted the department and requested to see her son, that things began to change. Bruce Trevorrow met his natural mother and siblings on his 10th birthday. He returned to her in Victor Harbour on subsequent occasions. By May 1967 the Department of Aboriginal Affairs had decided that Bruce would permanently return to live with his birth family. Unfortunately, however, Bruce had difficulty coping with this major change and became stressed, confused and overwhelmed.

Throughout his childhood Bruce displayed testing behaviour both when he was with his foster family and when returned to his natural mother. It reached the point that neither family could cope with his behaviour and he was placed into institutional care. Bruce spent his teenage years in state institutions, including jail. He is quoted as saying:

I just remember the punishment, the strictness. I was always in trouble.

In adolescence he turned to alcohol, felt increasingly isolated, became depressed and got in trouble with the law. His adult life involved periods of unemployment and heavy drinking. Although he married and fathered four children, the relationship has been described as unhappy and unsatisfactory.

In 1994, Bruce finally decided to question what had happened to him throughout his childhood. He met with a lawyer from the Aboriginal Legal Rights Movement in South Australia. He said at the time:

You see kids come and go, they do their time and go home. But with me it was different. I was just moving from institution to institution. I thought I’d just ask why I ended up in there.

And so he began what would be a decade-long legal challenge. Bruce’s action against the state of South Australia involved four claims: firstly, misfeasance of public office; secondly, false imprisonment; thirdly, breach of a duty of care; and, fourthly, breach of fiduciary and statutory duties.

In relation to the claim made of misfeasance of public office, the court received into evidence advices given by the Crown Solicitor’s office of the day. These showed that the processes that had been followed in removing Mr Trevorrow from his parents had not been legally authorised and, as a consequence, it was beyond the power available to the Aborigines Protection Board. Justice Gray concluded:

... that government was well aware that removals and placements of Aboriginal children were taking place in a manner contrary to the advices of the Crown Solicitors ...

As a consequence, Justice Gray found that Mr Trevorrow was entitled to damages for misfeasance. The judge remarked:

T was dealt with by the APB—

that is, the Aborigines Protection Board—

and the departmental officers in circumstances that involved a foreseeable risk of harm.

On the claim of false imprisonment, counsel for the plaintiff argued that Mr Trevorrow was imprisoned by virtue of the fact that he was unlawfully fostered and not returned to his natural mother, despite her requests. His Honour Justice Gray found that the APB’s intention to detain Mr Trevorrow was evident from the fact that it placed him into foster care and took no steps to return him to his mother until 1967. Accordingly, His Honour found that Mr Trevorrow was entitled to damages for false imprisonment.

Justice Gray further found that a duty of care was owed by the state of South Australia which was ongoing throughout Mr Trevorrow’s adolescence. He held that the state breached its duty of care and thereby caused Mr Trevorrow damage and loss. In particular, Mr Trevorrow suffered anxiety and depression as a child through being removed from his Indigenous family. This was a condition that persisted throughout his life and led to alcohol abuse and difficulty in coping. In his remarks Justice Gray said:

I am satisfied that the conduct of the State, amounting to misfeasance in public office, together with the false imprisonment of the plaintiff, has been a material cause of the plaintiff’s long-term depression. It was this conduct that ruptured the bond between the plaintiff and his mother and natural family.

The end result is that Justice Gray ordered that Mr Trevorrow be paid $525,000 in compensation.

The Trevorrow case is, as I said, a landmark decision, as it is the first requiring a state to compensate a member of the stolen generation. The case has implications that go well beyond South Australia and has given state governments cause to reflect upon the role they may have played in the removal of Indigenous children from their parents in the 1950s and 1960s. Not surprisingly, the federal government distanced itself from the prospect of future compensation payouts, with the Minister for Families, Community Services and Indigenous Affairs, Mr Mal Brough, saying, in response to the Trevorrow decision, that there would be no Commonwealth compensation fund.

On the 10-year anniversary of the Bringing them home report in May this year, Labor’s shadow Indigenous affairs spokesperson, Jenny Macklin, reiterated Labor’s commitment to a formal apology to the stolen generation when in government. Ms Macklin said:

It is the just and decent thing to do. An apology is not an empty gesture; it can, I think, be a circuit breaker.

The Trevorrow case highlights the injustices perpetrated by the state against members of the stolen generation and reminds us of the need for governments to take positive steps to ensure that Indigenous Australians take their place as equals in our society.