A Stolen Life

by Antonio Buti

  The Whitlam government abolished university student fees, allowing this working-class kid to attend the University of Adelaide, where she studied history. She was incensed by Governor-General John Kerr’s sacking of Whitlam after the Liberal–Country coalition refused to pass the necessary supply bills in the Senate. She thought the sacking was undemocratic and it motivated her to enrol in law school. She wanted to use the law to represent the working class and those marginalised by the power and economic structures of Australia.

  After graduating she worked a few public service jobs in Adelaide before spending a couple of years living and working in London. Her time there was formative: she was caught up in the 1981 Brixton riots, a large-scale confrontation between black British youth and predominantly white British police. In her work as a clerk at Middlesex Hospital, her brash Australian disregard for the unwarranted privileges of self-styled superiors in the workforce earned her admiration from her peers. On her return she needed to complete a one-year graduate diploma before being able to practise law in South Australia, after which she obtained employment with the ALRM, where she had done work experience. She had applied to be an Associate to Justice Elliott Johnston, who would later be a commissioner of the Royal Commission into Aboriginal Deaths in Custody. During the interview for the position, Johnston, who had only recently been appointed to the bench, asked Richardson what she wanted to do with her legal skills. ‘I want to work for the Aboriginal Legal Service,’ she said. He replied, ‘Why don’t you do that then?’ So off she went to the ALRM to gain her first job as a legal practitioner.

  It was only a short-term position and she had to learn quickly on the job. Her first assignment was a six-month secondment to Port Augusta where, as a novice lawyer, she had to do criminal trials without support. It was tough and frustrating; she was just a cog in a bureaucratic process that gave her no chance to improve the lot of her clients. She also found it difficult to act for those whose behaviour she couldn’t abide. When one client broke into her home and stole money, she refused to represent him. This, she decided, was not what she wanted.

  Her time in Port Augusta was valuable experience. When it was over, she went to work for a community legal centre in Norwood. She did civil work but not civil litigation as the clients, more often than not, did not have the financial resources to cover disbursement costs, such as obtaining a doctor’s report. She still did substantial criminal work, however. Among these clients were those who the local member of parliament referred to the legal centre. He was happy to have a legal service nearby where he could send constituents he could not help.

  Richardson gave birth to her precious daughter Thea in 1987. Over the next three years she did a variety of part-time work in private practice, as a TAFE lecturer and as a legal member of the Drug Assessment and Aid Panel, and also had to rely on sole parent payments. Her experiences as a welfare recipient strengthened her determination always to treat her clients with respect. She was a tougher lawyer now and she believed she had developed even more compassion for those whose life journey had been harder than hers. When she went to work again for the ALRM in 1990, her own life experiences would contribute to her better understanding of why some of her clients suffered a loss of self-worth and why they felt isolated from society. Richardson was now working from the Adelaide office as manager of the civil section, delighted to be away from the criminal law work.

  So by the time Bruce walks into her office in late December 1993, Joanna Richardson is well versed in dealing with long and complicated civil litigation. She is going to need all that experience and all the determination she has accumulated over her years. She will also need more patience than even she can envisage. So, too, will Bruce. But right now, with Christmas fast approaching, she is off to Tasmania with her daughter. Bruce will take the bus back to Meningie. Neither lawyer nor client knows what lies ahead.

  Chapter 9

  ‘THEY KNOW THEY BROKE THE LAW’

  April 1994. Those nights relaxing over a glass of white on a mild summer Hobart evening seem like years ago. ‘Was it L.P. Hartley who said the past is a foreign country? He could have been talking about my holiday.’ Joanna Richardson is back at work and is no longer relaxed. She is tough, a single mum who leaves work at three o’clock each afternoon to pick up Thea from school and still manages a caseload of fifty clients. With a sigh for what was, she gets back to work, committed and strong.

  She thumbs through her desk calendar, one of those that offers a usually unhelpful aphorism on each page. She can’t find even one to lighten her mood, though she does learn that ‘1994 is the Chinese Year of the Wood Dog’. The calendar note adds, ‘Wood Dogs prefer being part of the pack as this environment builds self-confidence.’ A metaphor for the importance of family, she wonders. Bruce Trevorrow is front of mind. A man who doesn’t belong to a family. She signs off the Freedom of Information request to the Department for Family and Community Services. She needs any information the Department holds on Bruce’s removal from his biological family. This is all Richardson can do for him right now.

  She turns to the pile of client files in her in-tray, which seems always to be on the point of overflowing. The ALRM in Adelaide is constantly under stress. It comprises two main areas, the criminal and the civil divisions, with the civil involving general civil work, which is Richardson’s, and the native title section, which Tim Wooley manages. Richardson has two secretaries, a field officer and two other solicitors, Marian Podobink and Syd Sparrow, a relatively junior lawyer. From time to time, the ALRM employs other solicitors on short-term contracts but the load is heavy and there are never enough helping hands. Richardson doesn’t complain as she is happy to be away from the day-to-day criminal court work. Her work varies: it involves discrimination cases, consumer rights cases and contract disputes, but she spends the bulk of her time on personal injury cases. One of these is taking up a lot of her time in 1994 and will continue to do so until the late 1990s. Though she doesn’t know it yet, the case of Donald Gray will be pivotal to her prosecution of Bruce’s case.

  In September 1988, while walking on a street with a group of other youths, sixteen-year-old Donald Gray was seriously injured when he was struck by a motor vehicle driven at him deliberately by a person named Darren Bransden. In March 1991 the Supreme Court of South Australia convicted Bransden of intentionally causing grievous bodily harm and sentenced him to seven years imprisonment for his ‘brutal and cowardly’ act.8 In 1993 Richardson launched an action in the District Court of South Australia for damages for negligence on behalf of Gray. She realised that pursuing Bransden was pointless as he was unlikely to have any money. Relying on provisions of the state’s Motor Vehicles Act, she named the Motor Accident Commission as the nominal defendant. The trial judge awarded Gray compensation of just over $72,000; however, he made no award for exemplary damages because, he reasoned, Bransden had already been punished in a criminal court. Richardson and Sydney William Tilmouth QC, the barrister for Gray, believe the trial judge ought to have awarded exemplary damages and they have appealed to the Supreme Court of South Australia. In 1996 the Court will dismiss the appeal.9

  True to her warrior instincts, Richardson will decide to appeal to the High Court. In the event, the hearing will be delayed to allow the High Court to hear a matter arising from the 1998 politically charged waterfront dispute involving the Maritime Union of Australia and Patrick Stevedores.10 The man representing the Maritime Union is Julian Burnside QC, who will later play a significant role in Bruce’s case, though Richardson is not to know this at the time. When the Gray appeal finally goes before the Court, Tilmouth, his junior counsel Geoffrey Britton, and Richardson will be happy with the outcome. On 17 November 1998, the Court will set aside the decision of the Supreme Court of South Australia. It will find that the original compensation award was inadequate and order a new trial on the issue of damages. But the High Court will not order a new trial on the matter of aggravated and exemplary damages, holding that the facts of the
Gray case do not warrant it given that Bransden had already been punished. As it will turn out, there will be no new trial because the parties settle before then. Nevertheless, although the High Court decides against exemplary damages, it does hold that a court can award exemplary damages for a cause of action founded in negligence.11 The significance of that will not be lost on Richardson.

  While she is working on the Donald Gray file and many others, in November 1994 a parcel arrives at the ALRM office addressed to Richardson. On the left-hand corner of the large envelope she sees the details of the sender: the Department for Family and Community Services. She slides the client file she is working on to one side, clicking the pause button on the dictaphone into which she is dictating yet another client letter to another insurance company. She knows the envelope will hold the information about Bruce that she has sought under the Freedom of Information Act and she is keen to discover what it will reveal.

  At first reading, she is disappointed. There are only around thirty pages, most of which are the usual standard material dealing with Bruce’s birthdate and other personal statistical information. In the bundle is a letter dated 19 August 1958 from Mrs Angas to Thora saying Bruce is not well enough to come home yet. ‘Bruce is making good progress but as yet the doctor does not consider him fit to go home.’ Nothing to excite Richardson in that letter. A mother wanting her child back home and a bureaucrat responding that the infant is not yet well enough. Very sad, she thinks, but probably not unusual. Only many years later would Richardson routinely refer to this as the ‘lying letter’.

  Before she knows it, another year ends. Her in-tray still looks to be in danger of overflowing. Same mountain, some different names. The one constant in her cramped office is the Trevorrow file. The Freedom of Information bundle—disheartening in its paucity of new information, most of it mere bureaucratic dross—lies nearby largely untouched. Richardson is not sure the bundle contains anything that will help her advance Bruce’s case.

  Meanwhile, in Meningie, Bruce is not well. He visits the local doctor at the Meningie Medical Centre because he is depressed. He is still lost on a long, lonely road. He is looking for someone, something, to help him find his way home. He wants to connect with his brothers and sister but it is hard. His childhood experiences haunt him. His inner demons will not let him be. He seems to remember that when he dabbled for a short while with church when living with the Davies the Bible had something to say about getting rid of demons, only he can’t remember what it was.

  A few months earlier, in August, the police had arrested Bruce and charged him with assaulting Veronica. Why did she marry him? He can’t find an answer. They had been arguing and Bruce, out of control, had punched Veronica in the head, not once but three times, then slapped her on the face. Their four children saw it all. Veronica, scared and hurt, called the police. By then Bruce had calmed down. The police spoke to Veronica, then charged him. Being ‘only a domestic’, the court reasoned—according to the standards of the time—if we speak to him sternly, that should be enough for him to see the error of his ways.

  Richardson has only a brief break from the office over Christmas and New Year. Just too much work to do. She enjoys this period when the office is a bit quieter. She is busy, of course, but it seems easier to handle when most of the staff are still away, enjoying a longer summer break. There are also fewer new clients coming through the door. Are they, too, on summer holidays? Soon enough, Australia emerges from its mid-summer lethargy and goes back to work. Once again, Richardson is busy, too busy.

  Prime Minister Keating, on the other hand, has not been operating on Australian summer time. He has been listening to the increasingly strident voices pushing for a royal commission into past government policy of separating Aboriginal children from their parents. He has especially been listening to the advice of his Attorney-General, Michael Lavarch, who is sensitive to the public interest role of his office. He takes seriously his responsibility to keep the government conscious of its duty to act in the best interests of the people. This means all people, he says. So now is an ideal time for the Prime Minister to walk the talk of his 1992 Redfern address.

  By May, he is ready. On 11 May 1995, Michael Lavarch announces that the Human Rights and Equal Opportunity Commission (HREOC) will conduct an inquiry into, and report on, the history and effects of the forced separation of Aboriginal and Torres Strait Islander children from their families. The National Inquiry is also to examine the adequacy of current laws, practices and policies on the delivery of services to those who had been separated, and to look at contemporary laws, practices and policies on the placement and care of Aboriginal and Torres Strait Islander children. It is not a royal commission but its outcome will be felt widely nevertheless. Sir Ronald Wilson, former Justice of the High Court, former president of the Uniting Church in Australia and current president of HREOC, is to be the commissioner. Although Aboriginal leaders and community elders welcome the National Inquiry, many are dismayed that even the man who, only three years ago, had spoken so passionately about the past injustices of White Australia would think it unnecessary to appoint an Aboriginal commissioner.

  Keating and Lavarch react quickly to this concern and appoint Mick Dodson, the Aboriginal and Torres Strait Islander social justice commissioner at HREOC, as co-chair of the inquiry with Wilson. Other HREOC commissioners will be involved periodically in the hearings and settlement of the report. Moreover, Aboriginal women will be invited to join as hearing commissioners in different regions of Australia. The National Inquiry is launched officially in Adelaide on 2 August though, controversially, with no power to recommend compensation, only to recommend principles on which compensation might be justified.

  Richardson, too, welcomes the inquiry, although it means more work for her. As head of the civil unit, she is charged with the responsibility of writing the ALRM submission to the inquiry. She will receive assistance from other ALRM staff, including Syd Sparrow and particularly Marian Podobink, but there is much to do. Later the ALRM will be contracted to the National Inquiry to provide support services when it is conducting hearings in South Australia. This will be over a ten-day period in March 1996, during which Richardson will travel with Wilson and Dodson down to the Coorong for a public hearing at Murray Bridge and a private hearing at Camp Coorong with Tom and George Trevorrow. She will also escort Wilson, Dodson and the inquiry secretariat further down south and east to Mount Gambier and places along the Murray River.

  Bruce does not attend the hearings at Camp Coorong. Things have not gone well since he was in court for assaulting Veronica. A family holiday to Bairnsdale in December 1994 eased tensions but, in 1995, depression is his constant companion as he works at the Warra Wodli Language Centre in Adelaide, returning to Meningie and the family only for weekends. In September, Bruce suffers a back injury at work, going on workers compensation payments, and on Christmas Day he is taken to the Murray Bridge Soldiers Memorial Hospital suffering from concussion and abrasions to his head from an assault, the result of an altercation in town. He spends three days in hospital and is diagnosed with chronic depression. He is still drinking excessively, which hinders his recovery and destroys any motivation to work. Another wasted year.

  There is no new leaf turned over with the new year, either. In late February 1996, Bruce argues heatedly with his employer because he will not give him time off to return to study. He eventually apologises, but too late; his employer does not want him back. As usual, he is not without work for long and just a week later he has a job back in Murray Bridge. His inner demons are still winning the battle, however, and within weeks of the National Inquiry being in town, Bruce is again under arrest, this time for assaulting the publican of the Meningie Hotel. Within hours of that arrest he is back at the pub, uninvited and disorderly, adding two more charges to his burgeoning form sheet.

  The stories Richardson hears from her other clients about their separation experiences ensures Bruce’s case is never far from her thoughts.
Busy as she is, she nevertheless knows she has to keep it moving. She seeks an opinion from the experienced Robyn Layton QC on the legal merits of Bruce instigating legal action against the State of South Australia. Layton, who has a strong interest in areas as diverse as labour standards, social justice, the arts and legal education, was admitted to the Adelaide Bar in 1968, taking silk in 1992. She has worked mainly in the areas of industrial, criminal, civil, personal injury and family law, and has served as judge and deputy president of the South Australian Industrial Court and Commission, and deputy president of the Administrative Appeals Tribunal. Layton has little documentary evidence on which to base her legal opinion: there is the legal brief prepared by Richardson and the thirty pages from the Department for Family and Community Services. When she delivers her opinion, she is blunt: ‘We need to do a lot more work. The only action which might succeed is negligence and/or breach of fiduciary duty.’

  This focuses Richardson’s mind. She needs to seek out more information on Bruce’s removal from his family. She needs to get inside the South Australian bureaucracy to ascertain governmental policy on gaining access to archival material. Bureaucracy works with an insensitive logic, unmoved by the hopes and ambitions of those whose lives hang on the outcome of its machinations. As Richardson works her way through the policies and rules that, over the years, with unfeeling precision, have determined who can have access to its archives and under what circumstances, she says to herself, thinking of the anxious clients who have placed their trust in her, ‘There is no such thing as impersonal law.’