Frames Version
The 'Stolen Generation' - Finding A Fiduciary Duty
| Author: |
Tim Hammond
Student, Murdoch University School of Law
|
| Issue: |
Volume 5, Number 2 (June 1998)
|
Contents:
Introduction
"The punishments I received at the Norseman Mission were by different people...Steve
Smith...wired my penis to receive electric shocks
when I wet the bed. This
treatment went on for months..."[1]
"The food was bad. We had maggots in the meat. We never had any shoes.
We used to jump in cow dung to keep our feet warm...We were
never allowed
to ask the house mother for sanitary clothing. We always had to ask the
big red headed Dutchman, who had a vile temper...he
loved nothing better
than to watch us have a bath. He also enjoyed giving us floggings".[2]
-
The above extracts are two of many stories told by Aboriginal men and women
who were taken away in their childhood from their families
and made wards
of the State of Western Australia. This paper discusses the merits of launching
an action based on the breach of a
fiduciary duty created by the State
as guardian to Aboriginal children who were classified by law as the State's
wards.
-
The fiduciary duty is a concept which arose from the courts of equity.
Although the fiduciary duty has escaped a precise definition,
a fiduciary
duty is said to arise "where, as a result of one person's relationship
to another, the former is bound to exercise rights
and powers in good faith
and for the benefit of the latter."[3]
-
This paper addresses the nature, scope and obligation of such a fiduciary
responsibility, and discusses whether there are grounds
for demonstrating
a breach of such a duty. Finally, the merits of launching such an action
are discussed. Through legislative provisions,
the State of Western Australia
established itself as a guardian to Aboriginal children removed from their
families during the State's
era of assimilation and segregation. "Within
limits, those who have suffered as children while in the hands of the State
or its agents
may find that the law is capable of protecting their interests".[4]
-
"The fiduciary relationship emerged from the Courts of Chancery in earlier
centuries. The primary aim of this equitable doctrine
is to prevent those
holding positions of power from abusing their authority".[5]
"Because of the dependency and vulnerability that was involved in trust
situations, equity imposed special duties on the trustee
known as fiduciary
duties".[6] Since
the time of its evolution, "the law has developed case by case, largely
by analogy, it being accepted that the categories of
fiduciary relationships
are not closed."[7]
-
Although most commonly applied to areas in which a trust arises, fiduciary
relationships are recognised at law in a number of situations.
A fiduciary
relationship has been held to exist in relationships such as a bank and
its clients, a lawyer and his or her clients,
a doctor and a patient, a
trustee and beneficiary, and a director and his or her company.
-
The fiduciary concept has been likened to "an accordion...(it) may be expanded,
or compressed, to maintain the integrity of relationships
perceived to
be of importance in contemporary society".[8]
However, recent case law has described the nature of the fiduciary duty
as going beyond its traditional boundaries.
"A fiduciary relationship would arise where 'one person is obliged, or has undertaken, to act in relation to a particular matter
in the interests of another and is entrusted with a power to affect those interests in a legal and practical sense', and where there
is a 'special vulnerability of those whose interests are entrusted to the power of another'".[9]
The underlying themes involved in a fiduciary relationship are those of vulnerability on behalf of the beneficiary and obligation
on behalf of the fiduciary.
-
These elements have been expressed slightly differently in a Canadian Case,
Frame v Smith, in which "Wilson J considered the analysis
of the High Court
of Australia and suggested that a fiduciary obligation possesses three
general characteristics: The fiduciary has
scope for the exercise of some
discretion or power, the fiduciary can unilaterally exercise that power
or discretion so as to affect
the beneficiary's legal or practical interests,
and the beneficiary is peculiarly vulnerable to or at the mercy of the
fiduciary
holding the discretion or power".[10]
-
If, at its simplest level, a fiduciary situation is held to arise whenever
there is a transfer of powers, what is there to stop a
legally enforceable
fiduciary duty from arising in all spheres of life? The answer to this
issue is addressed by Fletcher Moulton
LJ in Re Coomber when he states
that "the nature of the fiduciary relation must be such that it justifies
the interference."[11]
-
The nature of a fiduciary is difficult to determine in a precise form.
Regardless of the classification given to the fiduciary duty,
the underlying
elements of such an obligation suggest that fiduciary obligations are held
to exist, in their simplest form, when
there is a transfer of power "encumbered
by attached duties".[12]
-
Most guardians are considered to be in a fiduciary position with respect
to their wards.[13]
"Whether the guardian's influence flows from a custodial or advisory role; it amounts to the same thing: a power to dominate the
mind of another by reason of that other's inexperience, youth or impressionability".[14]
-
Such a position is evidenced by case law. In Williams v Minister, Aboriginal
Land Rights Act 1983, Kirby P followed an earlier decision Bennett v Minister
for Community Welfare in holding that in situations where the fiduciary
was a guardian, the guardian was "obliged...to act in (a ward's) interest
and in a way that truly provided , in a manner apt for
a fiduciary, for
(their) 'custody, maintenance and education'".[15]
-
A fiduciary relationship is held to exist when applied to the relationship
of a ward and a guardian. The guardian attracts the responsibilities
of
the fiduciary, and subsequently becomes liable in equity for any breaches
the guardian may commit.
-
The State of Western Australia adopted the position of legal guardian of
all Aboriginal children from as early as 1905, and arguably
even as early
as 1886, following the enactment of the Aborigines Protection Act. From
1905 until 1954, the "Minister was empowered
to remove any Aboriginal person.
As legal guardian of Aboriginal children... the Chief Protector could exercise
this power in relation
to Aboriginal Children". There were express provisions
in The Aborigines Act 1905 which prescribed legal guardianship to the Chief
Protector of "every Aboriginal and half caste child until such child attains
the age of twenty one years".[16]
Gradually, the State's powers of control over Aboriginal children diminished,
following amendments to the original legislation through
the Native Welfare
Act 1954 (WA). However, the State retained general powers supervision and
care through the provisions of the Child
Welfare Act 1947(WA).
-
The fact that the State expressly declared its guardianship status gives
rise to a guardian ward relationship. Bartlett states that
"the panoply
of extraordinary powers and the vulnerability of aborigines to their exercise
is considered to be as such as to have
given rise to a fiduciary obligation
in the State, provided such interests are considered capable of such an
obligation and it is
not construed merely as a political trust".[17]
-
Traditionally, the courts only decided on issues of fiduciaries on the
basis of economic and proprietary matters.[18]
Can the fiduciary relationship of guardian ward apply to interests which
are non economic or proprietary related? Comparative jurisprudence
indicates
that courts are increasingly willing to find instances of where fiduciaries
are obliged to protect their beneficiaries'
interests where these interests
are non proprietary. The decisions by the Supreme Court of Canada in Guerin
v The Queen, Frame v
Smith and K.M v H.M clearly establish the principle
that "non economic interests should also be capable of protection in equity
through
the imposition of a fiduciary duty".[19]
-
In Australia, it was held
"a fiduciary obligation may be imposed on the State with respect to the non economic interests of the Aboriginal people".[20] "Fiduciary principles 'are capable of protecting not only narrow legal
and economic interests, but can also serve to defend fundamental
human
and personal interests' ".[21]
-
On application of the case law from Canada and Australia, it is argued
that there is an appropriate scope for a justiciable claim
for breach of
a fiduciary duty with respect to non economic claims. The principles which
lie behind the notion of fiduciary relationships
can be used effectively
to argue such a breach of the fiduciary obligation occurred when Aboriginal
children were abused while they
were wards of the State of Western Australia.
-
"The content of a fiduciary obligation...will be tailored by the circumstances
of the specific relationship from which it arises".[22]
Traditionally, the obligations of the fiduciary were concerned with upholding
two duties: "one concerning the misuse of the fiduciary
position, the other
with conflicts of duty and interest in virtue of that position".[23]
"Together these amount to a standard of complete loyalty requiring the
subordination of the fiduciary's own interests."[24]
-
Applied to the fiduciary relationship of a guardian and a ward, the obligations
of the guardian /fiduciary are to "refrain from harming
the ward, (they)
must protect the ward from harm and must provide for their education".[25]
-
"A fiduciary will be in breach of (their) fiduciary obligations if an act
or decision cannot reasonably be said to be in the best
interests of their
beneficiary".[26]
However, "it is one thing to restrict a fiduciary's freedom of action,
it is quite another to require a fiduciary to act as to advance
the beneficiary's
interests".[27]Any
sustainable allegations of breaches of fiduciary obligations made by indigenous
people for acts committed by guardians must be
those in which there was
"exposure of children to physical, sexual or emotional abuse and deprivation
from family and cultural heritage".[28]Such
acts are positive breaches which can be readily identified as clearly in
violation of the traditional fiduciary obligations.
-
The National Inquiry Into The Separation Of Aboriginal And Torres Strait
Islander Children From Their Families identifies "three
ways in which Protectors
or Boards failed in their guardianship duties to Indigenous wards or children
to whom they had statutory
responsibilities".[29]These
breaches are failure to provide wards with contemporary standards of care;
failure to protect from harm and failure to involve
indigenous parents
in decision making about their own children.[30]
All three breaches are considered to be in contravention of the State's
statutory duty to adopt the role of guardian.
Merits
of Embarking On Such A Cause of Action
-
In light of the above parameters which define fiduciary relationships,
the merits of establishing an action based on a breach of
the guardian
ward relationship must be addressed. Below is an outline of arguments and
counter arguments which exist with respect
to the alleged breaches of fiduciary
duty on the part of the State as the legal guardian to the Aboriginal children
removed from
their families.
Arguments
For Such An Action
A Natural Extension Of An Existing Principle
-
In many ways, pursuing an action for the breach of fiduciary duty by the
State is a natural extension of an existing principle. The
fiduciary principle
originated from a concept
"originally reserved for relationships in which an extremely high degree of loyalty was exacted. The archetypal fiduciaries were
therefore persons such as trustees, solicitors and directors, whose professional position of itself gave rise to fiduciary responsibilities".[31]
-
In Mabo No. 2 the classification of fiduciaries was tentatively expanded
to accommodate a notion of a fiduciary obligation with respect
to native
title. Toohey J concluded that
"a fiduciary obligation existed with respect to native title land because of the State's power to extinguish native title... and (the)
corresponding vulnerability (which) gave rise to a fiduciary obligation on part of the State'".[32]
Toohey J then extended that argument by suggesting that a fiduciary relationship
may arise with "respect to non proprietary interests
of Aboriginal people".[33]
Justice Owen comments that
"it may be that the line of reasoning that has, at least to this time, concentrated on the relationship between the State and indigenous
people could be extended to other sections of the community. An example is the mentally ill".[34]
-
The categories of fiduciary relationships are not closed".[35]
The law is an evolving, system. The argument above indicates that there
is a logical basis for raising an action on the alleged breaches
fiduciary
duty owed by the State. Therefore, an action against the State for the
breach of a fiduciary duty should not be prevented
on the ground that it
is a novel or recent concept.
It Is A Way To Overcome The Limitation Problem
-
As held in KM v HM, and applied in Williams, "the Limitations Act does
not apply to equitable action such as an action for the compensation
for
breach of fiduciary duty".[36]
Buti states that
"bringing an action for the breach of fiduciary duty may overcome the non discretionary six year limitation period for bringing an
action that otherwise would apply under section [38](1) of the Limitation Act 1935 (WA)".[37]
The Limitations Act is deemed not to apply when commencing an action in
equity, "because it is worded so as to apply only to some
specifically
mentioned actions based in equity".[38]
Although this is a technical argument and yet to be tested in Western Australia,
it is important that those who have suffered have
the ability to seek some
type of compensation.
An Action For The Breach Of Fiduciary Duty Delivers Natural Justice
-
The Aboriginal children who allegedly suffered at the hands of their guardians
were innocent victims. The law is limited in the ways
in which it is capable
of providing compensation in this situation, and a breach of fiduciary
duty is a bona fide ground of relief.
As argued by Sweeney, "The law of
fiduciary relationships may both be the means to provide immediate redress
for broken promises,
and the catalyst for further change and appropriate
reparation in the longer term".[39]
Is In Accordance With The Underlying Tenets Of Equity
-
Equity is a system of law which is designed to be flexible and in line
with contemporary standards. It was designed to redress wrongs
rather than
enforce specific rules of law. Acknowledging such a fiduciary duty would
mean that equity still has a relevant place
in our system in this respect.
"The courts of equity have striven to protect the vulnerable from abuse
by persons with power over them, and the potential for such
abuse by persons
with power over them, and the potential for such abuse is one of the hallmarks
of a fiduciary relationship. Accordingly,
the law of fiduciary relationships
may well be the most appropriate means by which to analyse such State -
Aboriginal relationships".[40]
-
Overall, there are compelling arguments to be made for establishing a cause
of action based upon the State's breach of fiduciary
duty to Aboriginal
children who suffered abuse in the hands of their guardian. The arguments
lie in the fundamental concepts of natural
justice and equitable principles.
Arguments
Against Embarking On Such An Action
Such A Decision Requires A High Degree Of Judicial Activism
-
Di Marco argues that in extending the fiduciary breach to the State over
the indigenous peoples, there may exist the presence "of
excessive judicial
activism - the declaration of new principles of law based on political
considerations which should properly be
left to the political process".[41]
Judicial activism is inherently dangerous for the fact that there is no
public mandate which lends credence to the judicial decisions
which may
be seen to be active in the law rather than reactive as a response to the
Parliament.
-
However, Di Marco also points out that "'judicial activism' is an inherent
part of Equity jurisprudence. Equity has jurisdiction
...to recognise new
interests and remedies in response to social needs".[42]
Can Be Seen To Be Based On The Issue Of A 'Political Trust' And Therefore
Not Justiciable
-
State "accountability for non proprietary interests ...raises the question
of whether a 'political trust' rather than a 'legal trust'
has been created".[43]
As applied in the Federal Court of Appeal in Guerin, the court found that
the "extent to which the Government assumes an administrative
or management
responsibility for the reserves ...is a matter of governmental discretion,
not legal or equitable obligation".[44]
This decision was overturned in the Supreme Court of Canada. However, the
argument can be made that the government's discretion in
this area was
in the "public law context"[45]
, and that its guardianship actions were not subject to legal or equitable
obligation. The legislation which conferred power upon
the State to act
as guardians for Aboriginal children was "drafted in vague loose terms".[46]
As a consequence, the actions undertaken by the State government may be
seen as not justiciable.
-
The political trust argument can be defeated in the context that, as discussed
above, the Courts are increasingly prepared to find
a fiduciary relationship
where there is no proprietary interest which is affected. Such a stance
adopted by the courts means that
the legal as opposed to political trust
notions are not necessarily applicable in assessing a fiduciary relationship
on a guardian
ward level.
If This Principle Is Extended This Far, Then There Is No Telling Where
It Will Stop, i.e. parent/child fiduciary duties may be found
to be justiciable
-
Rosemary Teele argues that "the fiduciary principle is increasingly manipulated
to serve a number of gods other than the exaction
of a high standard or
conduct".[47]
Using the fiduciary principle "as a means of intervention where no other
doctrine is appropriate...results in confusion and uncertainty".[48]
-
If the court finds that the fiduciary relationship exists between the State
and the Aboriginal wards, where will it stop? As Batley
states, does this
"analysis suggest that parents may be made liable to their children for
failing to provide them with an appropriately
nurturing upbringing?"[49]
-
There are two reasons why this situation should not arise. The first is
that while the classification of fiduciaries is not closed,
"the nature
of the fiduciary must be as such that it justifies the interference".[50]
Second, the difference between the parent-child relationship and the guardian-ward
relationship with respect to the State is that
"the governmental authorities
supervise themselves. The vulnerability and dependence of the State is,
in that sense, absolute".[51]
-
There exist valid arguments for why an action for the breach of fiduciary
duty by the State as a guardian should not be pursued.
However, there also
exists counter arguments which strongly indicate that such an breach is
actionable. Despite the arguments which
criticise this line of action,
the best place to decide whether such a method of action is appropriate
is in the courts. Matters
potentially justiciable should not be quashed
before they have been reasoned.
Conclusion
-
One must place the fiduciary obligation within the context of what equity
involves. "The law of fiduciary relationships may both
be the means to
provide immediate redress for broken promises, and the catalyst for further
change within the system".[52]
Successful action in this area of the law ultimately means the delivery
of justice to those who have experienced harm and distress
at the hands
of the State. "At a fundamental level, the State government has a moral
obligation to redress the wrongs of the past
and, in particular, facilitate
the hearing of any actions on their substantive merits".[53]
It is submitted that, on evaluation of the merits of an action based on
alleged breaches of fiduciary duty, such an action should
be recommended
as a viable avenue for justice.
[1] Brian, born
1921, 'taken away' aged 3 to 4 years. Cited from After The Removal, (Western
Australia : Aboriginal Legal Service of
Western Australia (Inc), 1996),
Prepared by T. Buti, 33.
[2] Marilyn,
born 1945, taken away, aged six years. Cited from Telling Our Story - A
Report By The Aboriginal Legal Service Of WA (Inc)
On The Removal Of Aboriginal
Children From Their Families In Western Australia, (Western Australia :
Aboriginal Legal Service of
Western Australia (Inc), 1995), 4.
[3] Beherendt,
J, "Fiduciary Obligations and Native Title" (1993) 63 Aboriginal Law Bulletin,
7.
[4] Batley,
P, "The States Fiduciary Duty to Stolen Children" (1996) 2 (2) Australian
Journal of Human Rights.
[5] Hon
Mr Justice Owen, "The State as a Fiduciary", (1996) Law Society Of WA (Inc)
Seminar On The Recent Developments In The Law Of
Fiduciary Obligations,
Law Society of Western Australia (Inc), Perth, 1.
[6] Gautreau,
JRM, "Demystifying the Fiduciary Mystique" (1989) 68 Canadian Bar Review,
1.
[7] Hospital
Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, at
96 per Mason J. cf English v Dedham Vale Properties Ltd. [1978] 1 WLR 93,
at 110. Cited in Batley, above, note 4 (footnote 35).
[8] Tan,
D, "The Fiduciary as an Accordion Term: Can The State Play a Different
Tune?" (1995) 69 Australian Law Journal, 440.
[9] Hospital
Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, cited
in Bartlett, R, "A Fiduciary obligation respecting the delivery of services
to the Aboriginal communities", Australiasian
Law Teacher's Association,
Cross Currents: Internationalism, National Identity And The Law, 1995 (footnote
1).
[10]
[1987] 2 SCR 790, cited in Bartlett, above, note 9 (footnote 2).
[11] [1911]
1 Ch 723, cited in Gautreau, above, note 6, at 16.
[12] Shepherd,
JC, "Towards a Unified Concept of Fiduciary Relationships" [1981] Law Quarterly
Review, 79.
[13] Shepherd,
JC, The Law of Fidcuciaries (Toronto:Carswel Co Ltd, 1981), 29.
[14] Id,
at 109.
[15]
Williams v Minister, Aboriginal Land Rights Act 1983. (1994) 35 NSWLR at
511.
[16] Aborigines
Act 1905, s 12.
[17] Bartlett,
above, note 9 (in between footnote 7 & 8).
[18] M(K) v M(H), (1993) 96 DLR (4th)
289, La Forest J at 325.
[19] Per
Wilson J in Frame v Smith, cited in M(K) v H(K), above, note 19, per La
Forest J at 325.
[20] Williams
v Minister, Aboriginal Land Rights Act 1983, cited in Bartlett, above,
note 9, (after footnote 63).
[21]
Mason, A, "The Place of Equity and Equitable Remedies in the Contemporary
Common Law World" (1994) 110 Law Quarterly Review, 247 Mason J cites Norberg
v Wynrib (1992) 92 DLR (4th) 449.
[22] Per
Toohey J in Mabo[1992] HCA 23; , (1992) 175 CLR 1, Cited Tan, above, note 8 , 447.
[23] Id,
448.
[24] Teele,
R, "The Search for a Fiduciary Principle: A Rescue Operation" (1996), 24
Australian Business Law Review, 112.
[25] "Bringing
Them Home" National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families,
Human Rights and Equal Opportunity
Commission (1997), 259.
[26] Telling
Our Story, above, note 2, 182.
[27] Batley,
above, note 4 (footnote 62).
[28]
Id (in between 81 and 82).
[29]
Bringing Them Home, above, note 25, 260.
[30] Id.
[31] Teele,
above, note 24, 111.
[32] Bartlett,
above, note 9, ( footnote 60-61).
[33]
Id.
[34] Owen
J, above, note 5, 23.
[35] Hospital
Products Ltd [1984] HCA 64; (1984) 156 CLR 41, cited in Batley, note 4.
[36] Buti,
T, "They Took the Children Away" [1995] AltLawJl 14; (1995) 20 Alternative Law Journal 35 at
36.
[37]
Id
[38] Id
[39] Sweeney,
D "Broken Promises: Crown's Fiduciary Duty to Aboriginal Peoples" (1995)
3 Aboriginal Law Bulletin, 4 at 7
[40] Id
[41] Di
Marco, L, "A Critique and Analysis of the Fiduciary Concept in Mabo v Queensland"
[1994] MelbULawRw 19; (1994) 19 Melbourne University Law Review, 868 at 891
[42] Ibid,
892
[43] Bartlett,
above, note 9, (inbetween footnotes 8 and 9)
[44] Id
[45] Id
[46] Godfrey,
K, "The Lost Kooris" [1995] AltLawJl 9; (1995) 20 Alternative Law Journal, 26 at 27
[47] Teele,
above, note 24, 110
[48] Ibid,
112 & 110
[49] Batley,
above, note 4, at footnote 84/85
[50]
Per Fletcher Moulton LJ, in Re Coomber, cited in Gautreau, above, note
6, 16
[51] Bartlett,
above, note 9 at footnote 92
[52] Sweeney,
above, note 40, 7
[53] Telling
Our Story, above, note 2, 184
Bartlett, R, "A Fiduciary obligation respecting the delivery of services
to the Aboriginal communities", Australiasian Law Teacher's
Association,
Cross Currents: Internationalism, National Identity And The Law, 1995.
Batley, P, "The States Fiduciary Duty to Stolen Children" (1996) 2 (2)
Australian Journal of Human Rights.
Beherendt, J, "Fiduciary Obligations and Native Title" (1993) 63 Aboriginal
Law Bulletin, 7.
Bringing Them Home National Inquiry into the Separation of Aboriginal
and Torres Strait Islander Children from Their Families, Human
Rights and
Equal Opportunity Commission (1997).
Buti, T, (prep) After The Removal, (Western Australia : Aboriginal
Legal Service of Western Australia (Inc), 1996).
Buti, T, "They Took the Children Away" [1995] AltLawJl 14; (1995) 20 Alternative Law
Journal 35
Cope, M (ed) Equity, Issues and Trusts (Annandale: The Federation
Press, 1995) Ch 5.
Dorsett, S. "Apsassin v The Queen in Right of Canada" (1996) 3,
78 Aboriginal Law Bulletin, 7.
Di Marco, L, "A Critique and Analysis of the Fiduciary Concept
in Mabo v Queensland" [1994] MelbULawRw 19; (1994) 19 Melbourne University Law Review, 868.
Gautreau, JRM, "Demystifying the Fiduciary Mystique" (1989) 68
Canadian Bar Review.
Godfrey, K, "The Lost Kooris" [1995] AltLawJl 9; (1995) 20 Alternative Law Journal,
26.
Haebich, A "For Their Own Good - Aboriginals and the Government in the
South West of Western Australia 1900-1940" (Nedlands : University
of Western
Australia Press, 1992).
Malbon, J. "The Fiduciary Duty: The Next Step For Aboriginal Rights?"
(1994) 19, 2 Alternative Law Journal, 92.
Mason, A, "The Place of Equity and Equitable Remedies in the Contemporary
Common Law World" (1994) 110 Law Quarterly Review, 247.
Merkel, R, "Government Culpability - For the Forced Removal of Aboriginal
Children From Their Families" (1990) 2, 47 Aboriginal Law Bulletin, 4.
Merkel, R, "The Long Road Home - The Going Home Confererence 1994"
Extract of speech made to the conference, 12.
McHugh, PG "The Role of Law in Maori Claims" (1990) New Zealand
Law Journal, 16.
Owen, Hon J, "The State as a Fiduciary", (1996) Law Society Of
WA (Inc) Seminar On The Recent Developments In The Law Of Fiduciary
Obligations,
Law Society of Western Australia (Inc), Perth, 1.
Shepherd, JC, The Law of Fiduciaries (Toronto:Carswel Co Ltd, 1981),
29.
Shepherd, JC, "Towards a Unified Concept of Fiduciary Relationships"
(1981) 97, Law Quarterly Review, 51.
Sweeney, D "Broken Promises: Crown's Fiduciary Duty to Aboriginal
Peoples" (1995) 3 Aboriginal Law Bulletin, 4.
Tan, D, "The Fiduciary as an Accordion Term: Can The State Play a Different
Tune?" (1995) 69 Australian Law Journal, 440.
Teele, R, "The Search for a Fiduciary Principle: A Rescue Operation"
(1996), 24 Australian Business Law Review, 112.
Telling Our Story A Report By The Aboriginal Legal Service Of
WA (Inc) On The Removal Of Aboriginal Children From Their Families In
Western
Australia, (Western Australia : Aboriginal Legal Service of Western Australia
(Inc), 1995).
Youdan, TG, Equity, Fiduciaries and Trusts (Toronto : The Law
Book.
Company, 1989).
Legislation and Cases.
Aborigines Act 1897 (WA).
Aborigines Act 1905 (WA).
Native Welfare Act 1954 (WA).
Child Welfare Act 1947 (WA).
Bennett v Minister of Community Welfare, [1992] HCA 27; (1992) 176 CLR 408.
M(K) v M(H), (1993) 96 DLR (4th) 289.
Williams v Minister, Aboriginal Land Rights Act 1983. (1994) 35 NSWLR
at 511.
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