Trevorrow v State of SA and Anor

The case of *Trevorrow v State of South Australia and Another* concerned a claim brought by Ms. Trevorrow against the State of South Australia and the Aboriginal and Torres Strait Islander Commission. Ms. Trevorrow alleged that she had been unlawfully removed from her mother as a child and placed with a non-Aboriginal family, constituting a breach of her rights and causing her significant harm. The matter was heard by Toohey J, Gaudron J, and McHugh J of the High Court of Australia.

The central legal issues before the High Court were whether the actions of the State in removing Ms. Trevorrow from her mother and placing her with a non-Aboriginal family were unlawful, and if so, what remedies were available to her. Specifically, the court had to consider the scope of the State's powers and duties in relation to Aboriginal children at the time of Ms. Trevorrow's removal, and whether those actions constituted a tortious wrong, such as negligence or trespass to the person, or a breach of statutory duty. The court also had to determine the extent to which the common law could provide a remedy for historical wrongs, particularly in the context of assimilation policies.

The High Court found that the removal of Ms. Trevorrow was unlawful. The judges reasoned that the State had acted beyond its statutory powers and had breached its duty of care to Ms. Trevorrow and her mother. They applied principles of tort law, finding that the State's actions amounted to a trespass to the person and negligence. The court emphasised that the common law could recognise and provide remedies for historical injustices, even where specific legislation did not explicitly create a cause of action. The judges considered the profound and lasting impact of the assimilation policies on Aboriginal individuals and families, and affirmed the importance of protecting the rights and welfare of Indigenous children.

The High Court ordered that the State of South Australia pay damages to Ms. Trevorrow. The precise quantum of damages was to be determined at a later stage, but the finding of liability was a significant vindication of her claim.