THE STATE and federal governments are being urged by members of the legal profession to set up a compensation scheme following the first successful claim by a member of the stolen generation.
Bruce Trevorrow was awarded $525,000 in damages by the Supreme Court of South Australia last week after a 10-year legal battle.
Trevorrow, now 50, was just 13 months old when he was taken to hospital on Christmas Day in 1957. He made a good recovery but was subsequently given to a white foster family with whom he remained for 10 years. When his mother enquired as to her son’s whereabouts, the Aboriginal Protection Board lied to her saying he was still sick and that doctors needed to keep him for treatment.
Justice Gray found that removing a child from their family in these circumstance constituted wrongful imprisonment and was a breach of the state’s duty of care.
Junior counsel Claire O’Connor, who represented Trevorrow, said the case was certain to pave the way for other claimants.
“It recognises that sometimes governments will be liable for removing children so for that reason it’s an important decision because it means that there is now a precedent that must affect other claimants.
So although in this case the factual situation was quite unique, the liability will extend to other cases, including beyond South Australia. It’s about illegal behaviour. If another claimant can show that there was an illegal removal — that’s contrary to law at that time — then they would have a claim,” she said.
The Human Rights and Equal Opportunity Commission recommended the establishment of a National Compensation Board in its Bringing Them Home report 10 years ago. However, Tasmania is the only state to have set up a compensation scheme, and it’s a modest one at that — worth just $5 million.
The Australian Lawyers Alliance (ALA) has announced it will establish a working party to develop a proposal for a compensation scheme. Ian Brown, president of ALA said a national solution was needed and the ALA aimed to come up with a proposal that would be available to members of the stolen generation across Australia without them having to go to court. Brown said such schemes are not uncommon.
“There is ample precedent for governments setting up compensation schemes for victims of abuse, most recently in Queensland for victims of medical malpractice with the Bundaberg Hospital scheme, where people who are affected are not required to go through the trauma of litigation to … achieve an uncertain outcome. The working party will comprise representatives of the [ALA] who’ve been involved in not only indigenous affairs but also compensation schemes in other areas, for example for sexual abuse by state run institutions,” he said.
South Australian Premier Mike Rann said his government did not intend to immediately challenge the Supreme Court’s ruling in this case, but the government’s legal advisers were studying the 300-page judgment to examine its implications.