Can the Common Law Adjudicate Historical Suffering?

38 Pages Posted: 3 Mar 2017

See all articles by Honni van Rijswijk

Honni van Rijswijk

University of Technology Sydney, Faculty of Law

Thalia Anthony

University of Technology Sydney, Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: December 1, 2012

Abstract

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.

Keywords: Stolen Generations, law and history, responsibility, narrative, Lampard-Trevorrow

JEL Classification: K10, K13, K41

Suggested Citation

van Rijswijk, Honni and Anthony, Thalia, Can the Common Law Adjudicate Historical Suffering? (December 1, 2012). Melbourne Univeristy Law Review, Vol. 36, 2012. Available at SSRN: https://ssrn.com/abstract=2334550

Honni Van Rijswijk (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

Thalia Anthony

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

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