Private Law and Grave Historical Injustice: The Role of the Common Law

Abstract

This article reclaims an important role for the common law in cases of grave historical injustice, which we define as serious, widespread instances of wrongdoing that have remained unaddressed and un-redressed for long periods of time. Contemporary examples in Australia include the abuse of vulnerable individuals within the Catholic Church and Australian Defence Force, and the historical theft of wages from Aboriginal peoples. Contemporary discourse assumes that private law has little to contribute to the debate about how to deal with such cases. It focuses instead on public apologies and limited reparations schemes, on the basis that these offer victims quicker, more satisfactory solutions. We suggest an important role for private law and its corrective justice framework in informing and enhancing the design of reparations schemes current and future, so as to accord victims a fuller and more meaningful measure of justice.