The Opposition Justice Spokesman Christopher Pyne can sound awfully shrill when he gets excited. And on the issue of the Stolen Generation and the Rudd government’s proposed apology it is one of those occasions.

Mr Pyne says that “The Labor government has opened this can of worms in terms of compensation by going down this track, a formal apology to stolen generations,” and that “The Coalition has always said the danger of an apology is the potential to open the avenues for compensation.”

Calm down Christopher. Remember what you were taught at the University of Adelaide Law School all those years ago? That in order for a claim in negligence, or breach of statutory duty or any other form of what is known as a tortuous action to succeed, the plaintiff has to show causation. In other words, that the damage he or she has suffered was caused by the defendant in circumstances where it was reasonable to expect the defendant to take steps to prevent the harm.

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In fact Mr Pyne should familiarise himself with a judgment handed down last year from one of his own state’s judges – that of Justice Tom Gray of the South Australian Supreme Court in the case involving a member of the Stolen Generation Bruce Trevorrow.

Mr Trevorrow has been awarded damages because he was taken from his family in 1957 in circumstances in which the government of South Australia knew were unauthorised.

On Christopher Pyne’s logic, the South Australian Parliament’s May 1997 Apology to the Stolen Generation of that state would have made Mr Trevorrow’s case an open and shut one. But it didn’t. In fact, not once in his lengthy reasons for decision does Justice Gray mention the Apology as amounting to an admission of wrongdoing on the part of the South Australian government.

In determining whether any member of the Stolen Generation can rightfully claim compensation requires a court to analyse in that particular case “at least the following – the legislative scheme; the consistency or otherwise of an asserted duty with the scheme; foreseeability; vulnerability; control; proximity; and powers and abilities to take practical steps to obviate or reduce a foreseeable risk,” says Justice Gray.

In other words, even if there is an avalanche of claims after the Australian Parliament moves its apology tomorrow each case will have to be tried on its merits. And that, as Trevorrow’s case shows, will present real hurdles to claimants.

One would have hoped the person who purports to be the alternative federal Attorney-General would bother to examine the law before opening his mouth.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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