Stolen Generation Success

By Legal Eagle

I was interested to read the recent case of Trevorrow v State of South Australia (No. 5) (2007) SASC 285. Put briefly, the plaintiff was taken from his parents as an infant, and consequently had a troubled childhood and adolescence. He succeeded in his efforts to sue the South Australian government. I think that this was a just result.

It’s a sad story. The plaintiff was cared for by his mother and his father. His mother separated from his father, and left three of the children with the father over Christmas. When he was a little over a year old, the plaintiff contracted gastroenteritis and his father did not have transport by which to get him to hospital. The police could not help. So the father got the local garage proprietors to take the boy to hospital.  The plaintiff was cured, but instead of being returned to either parent, he was then fostered out with a non-indigenous family. Neither parent knew what had happened to the boy. The mother tried to get the boy returned to her, but was told that there was nothing she could do. Meanwhile, the plaintiff was fostered out to a non-indigenous household and brought up as a child of the house. Once the plaintiff found out that he was not related to his family, he began to act up and steal things. He was returned to his mother when he was 10 years old, but found it extremely difficult as he did not know his family and did not know Ngarrindjerri language or customs. He then got into trouble with the law, and became an alcoholic. In comparison, his brothers and sisters who were not taken from their parents seem to have overcome childhood difficulties and poverty. One brother of the plaintiff is a respected Ngarrindjerri elder.

The Court was prepared to extend the limitation of actions period in the circumstances.  Gray J found that the plaintiff was not removed from his parents in accordance with prescribed statutory processes. There was a foreseeable risk of harm to the plaintiff. Accordingly, the South Australian government was liable for a number of claims:

  • tort of misfeasance in the public office;
  • tort of false imprisonment;
  • tort of negligence
  • possible breach of fiduciary duty (for which damages would be the same as for common law actions;

The plaintiff was awarded $450,000 damages for the breaches of the duties above, and $75,000 in exemplary damages.

It seems to me that this case is a fair one. As I’ve outlined in a past post, I don’t take a hard and fast attitude towards the Stolen Generation. There are at least two conflicting motives at play. I’m sure that some probably did have the best interests of children at heart. But there was also an explicit desire to “Westernise” indigenous children and a racist aim of “wiping out” indigenous culture. Both motives were often combined.

As I have also explained, I have known indigenous people who were taken from their parents or had relatives who were taken from their parents. Their stories lead me to believe that great pain has been visited on these people, but that in some cases there were valid reasons for them being taken from their parents. The scenarios are complicated and not well suited to the adversarial arena of the court room.  In one instance, a student’s mother was taken from her tribe because the majority of the tribe wanted to kill the baby (a “half-caste” child who was the product of a rape). The mother of the child did not want her to die, and so she relinquished the child to authorities after it transpired that she could not protect the girl. Another friend was taken from her mother because her mother was physically abusive. Her mother lacked parenting skills, in part presumably because she herself had been taken from her parents. However, unfortunately, my friend was also abused in the foster homes in which she was subsequently placed. She has suffered lasting psychological damage.

I agree with Julian Burnside QC that there can be no blanket response to this issue: it all depends on the facts of each case. For example, in the Cubillo case, the plaintiffs failed in large part because their factual allegations could not be made out.  In comparison, in this case, the plaintiff succeeded because he could point to the fact that his removal was not authorised, and he could also establish that his psychiatric problems arose because of his placement in a foster home. I presume that it was highly relevant that his siblings seem not to have had these kind of problems, even though they also had a difficult upbringing.


  1. Posted August 6, 2007 at 11:58 pm | Permalink

    No amount of money will make up for the hell this man or members of his class went through.

    In Canada there is a good thing going. The Canadian government has a fiduciary relationship with its indigenous people.

  2. pete m
    Posted August 7, 2007 at 9:19 am | Permalink

    There was no evidence here of any government policy to remove ab children. There is evidence here of a government officer acting against the law in removing this child, and he has now been awarded compensation.

    To describe it as “hell” is too much. Was there any evidence of abuse by his foster parents?

    So out of this whole “generation” of wrongly removed children we have been told occurred, we have 1 successful case after 10+ years this has been widely publicised. Sorry but I am not convinced the premise for this sorry debacle can be laid at the feet of government policy.

    Sure some workers were overzealous in removing children, but in many cases of alleged “stolen” children, the evidence has shown the parent/s consented to the removal – hence no case was brought.

    Good to see governments moving to set up funds so there is no need for court cases and more trauma.

  3. Posted August 8, 2007 at 5:23 pm | Permalink

    LDU, I don’t actually think fiduciary duties are appropriate in Australia, although, like you, I used to think so 10 years ago when I was an undergraduate student.

    I don’t support the imposition of proscriptive fiduciary duties to cover obligations such as abuse of children or availability of doctor’s records (as in Canada). I particularly dislike an instrumentalist view of fiduciary duties (where a court says it will award a fiduciary duty because the remedies are better).

    That is not to say that a fiduciary duty does not exist in some circumstances for particular indigenous people. In the present case, I would say that the analogy with guardian and ward was clear, and it was equally clear that the duty was breached as the government acted in conflict of the plaintiff’s interests.

    Pete M, I believe that this poor man did suffer greatly by his experiences. He was not abused by his foster parents, and on the contrary, they loved him as their own son. His foster mother seems to have had some psychiatric problems of her own, but it is clear that she did love and care for him. Nonetheless, he was irredeemably scarred by being taken away from his community, and it seems clear on the facts that his psychiatric problems stemmed from this.

    I would say that there was neither a policy of genocide or a policy of good will. There was in fact, a bit of both mixed in together. That’s what makes these cases so hard to litigate, added to fact that (a) it all happened so long ago and (b) people’s memories are notoriously inaccurate. You can’t generalise, all you can do is look at these cases individually.

  4. Posted August 9, 2007 at 4:24 pm | Permalink

    I know Gray J’s associates, and they’re certainly happy to see the back of that one – it’s been a verrrry long time in the making!

  5. Posted August 15, 2007 at 2:46 pm | Permalink

    omg sooooooooo sad : (

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