NDLI: Unlocking the Alienation: A Comparative Role for Alien Torts Legislation in Post-colonial Reparations Claims?

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Unlocking the Alienation: A Comparative Role for Alien Torts Legislation in Post-colonial Reparations Claims?

Content Provider	Springer Nature Link
Author	Grant Allen, Jason Ann Hocking, Barbara
Copyright Year	2009
Abstract	This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted.
Starting Page	247
Ending Page	276
Page Count	30
File Format	PDF
ISSN	15248879
Journal	Human Rights Review
Volume Number	11
Issue Number	2
e-ISSN	18746306
Language	English
Publisher	Springer Netherlands
Publisher Date	2009-08-12
Publisher Place	Dordrecht
Access Restriction	One Nation One Subscription (ONOS)
Subject Keyword	Tort law Alien Tort Claims Act 1789 Post-colonial Australia Indigenous reparations Political Science Political Philosophy Ethics Philosophy of Law Law Theory/Law Philosophy
Content Type	Text
Resource Type	Article
Subject	Sociology and Political Science Law

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