|
|
[Home] [Help] [Databases] [WorldLII] [Feedback] | |
Melbourne University Law Review |
The Cubillo litigation was hailed as the first of many[1] so-called ‘Stolen Generations’[2] civil actions against the Commonwealth.[3] However, for legal and social reasons, O’Loughlin J’s decision (along with those of New South Wales courts in a similar child removal claim against that State in Williams v Minister, Aboriginal Land Rights Act 1983[4]) may have consumed much Aboriginal energy for litigation campaigns[5] against governments to redress past child removals.
Cubillo has had the publicly positive — although apparently privately painful[6] — result of unsettling the uniformity of public debate on the nature of past removals of children of ‘mixed’ descent[7] from their Aboriginal families.[8] It makes clear that, in one jurisdiction, removal policy and its justifications were different in different historical periods, and that (on official records at least) the numbers of children affected by race-specific laws and policies declined considerably from the late 1950s.[9] However, as discussed below, a confusing aspect of the decision is O’Loughlin J’s apparent failure to distinguish clearly between race-specific and general welfare regimes as they affected children or adults of Aboriginal descent.[10] Thus the statistics on which his Honour relied may obscure the numbers of Aboriginal children affected by inter-generational institutionalisation (including those born in institutions),[11] and the large number of ‘part-Aboriginal’ children removed under ordinary child welfare legislation from the 1950s.[12]
The judgment is valuable for the evidence it contains about administration[13] of the 1918 Ordinance and the Welfare Ordinance — evidence drawn from historical records and officials appointed under those laws — but disturbing for the apparent lack of fit between most of these accounts and those of many affected Aborigines, including the applicants. Like Kruger,[14] Cubillo undermines some claims made by or on behalf of former ‘stolen’ children in other contexts. Kruger undermined the finding by the Human Rights and Equal Opportunity Commission inquiry that removal was genocidal.[15] As discussed below, Cubillo undermines claims that post-war Commonwealth removal policy was ‘blanket’ and eugenicist. However, although tabloid newspaper commentary would have it that O’Loughlin J found the ‘Stolen Generation’ disproved by the evidence,[16] his Honour went to some lengths to explain that ‘the evidence ... cannot be used as a base to examine the breadth of the term “the Stolen Generation”. [It] showed that broad generalisations cannot be made.’[17]
Like other recent decisions, Cubillo treats Aboriginal ‘protection’ and ‘welfare’ laws as having been benign in their intent. In the 1990s,[18] this process started with Kruger which included a partial and, in my view, unsatisfactory analysis of the 1918 Ordinance. In that analysis, some judges glossed up to 80 years of legislative history, drawing inappropriate analogies between early 19th century ‘protection’ regimes (which were concerned with small ‘remnant’ populations)[19] and the more managerial regimes of the early 20th century (which threw a broad, finely woven net over most people of Aboriginal descent, in particular from the 1930s).[20] In other subsequent cases, this conclusion seems to have hardened into a form of ‘fiat history’ — an historical conclusion reinforced via the doctrine of precedent.[21] Whether the ‘beneficial’ analysis is an accurate one of the laws’ official guardianship and child removal and institutionalisation provisions, public debate has largely obscured their other provisions[22] — those permitting unpaid or underpaid Aboriginal labour and official appropriation of its proceeds;[23] those restricting Aboriginal use of space,[24] particularly towns;[25] those outlawing acts which might lead to miscegenation;[26] those involving officials in the conduct of Aborigines’ criminal defences;[27] those outlawing drinking;[28] and separate controls on drug or alcohol supply.[29] Arguably, the true nature of ‘protection’ and ‘welfare’ laws can only be comprehended when the full scope of these detailed controls is understood.[30] (It seems unlikely that judicial interpretation of legislation, traditionally reliant on limited documentary sources, can go further to take account of Aboriginal experiences of that legislation’s impact.)
As discussed below, in Cubillo the judge treated the applicants’ main (psychiatric) injuries as having been sustained as a result of, and at the time of, their removal. As a result, an extension of time to bring their actions was required. Arguably, the fact that such a long extension would have been required raises interesting questions about what law should be applied. However, although O’Loughlin J deferred to past standards of reasonableness and foreseeability in negligence, there is no suggestion that his Honour applied anything other than the common law as expressed by the courts of the present day.[31]
Unlike Williams v Minister, Aboriginal Land Rights Act 1983,[32] Cubillo is a decision on both substantive and limitations issues. (In an earlier decision, O’Loughlin J declined to grant the Commonwealth summary judgment on limitations and abuse of process grounds.[33]) It turns, perhaps more than anything, on the ‘overwhelming prejudice’ to the Commonwealth of claims being brought more than 30 years out of time when relevant records have disappeared and witnesses have died. Limitations are likely to be the deciding factor in similar cases brought by people long separated from their families by the state. Such cases turn on their facts — whether or not witnesses to a particular plaintiff’s institutionalisation have died or the records thereof have disappeared, such that a government is unable to defend itself properly.[34]
In cases as old as these, there is an important question about whether limitations should be decided separately, in advance of (or at the expense of) any trial. Whether a court is prepared to make such a decision, and the kind of decision it makes, may depend on who seeks it — a plaintiff or a defendant.[35] Plaintiffs and their lawyers have good reason to resist early determination of limitations issues: there may be considerable evidence relevant to the overall justice of an extension of time to be discovered on the government’s side.[36] On the other hand, where limitations are a deciding issue, plaintiffs (or their lawyers) who hold out for their late determination may face difficult questions from others for whom their cases hold large symbolic or precedential value,[37] or those whose own claims might have been funded out of the same public budgets.[38] Further, the emotional costs of involvement in civil cases are high for most plaintiffs, but are especially high when (as here) litigation attracts public controversy and the (false) expectation that complex social issues will be thereby resolved. Like native title claims which result in decisions that title has been ‘washed away’ by the ‘tides of history’[39] or extinguished by historical land dealings,[40] child removal cases which fail at trial on limitations grounds will require plaintiffs to open up their lives to very public forensic examination, whether or not time has defeated them.
Inevitably, outsiders will ask whether these particular plaintiffs embodied the best possible child removal ‘test case’, and whether, in the context of limited Commonwealth funding to address the identified needs of indigenous people removed as children,[41] funds spent on both sides might have been better directed to the welfare of former separated children. The litigation may have a wider negative impact on the class of people it was intended to benefit. Evidence to a recent Senate inquiry[42] suggests that similar plaintiffs or potential litigants have refrained from seeking counselling to address the long-term effects of removal[43] on legal advice that their counselling records might be subpoenaed in court to their disadvantage.[44]
Lorna Cubillo and Peter Gunner sued for wrongful imprisonment, breach of statutory duty, negligence and breach of fiduciary duty arising out of their removal from their central Australian Aboriginal mothers[45] as children and their detention in homes run by two religious organisations: the inter-denominational Protestant sect Aborigines Inland Mission (‘AIM’), and what was then the Church of England’s Australian Board of Missions (‘ABM’). They claimed damages for loss of cultural and other aspects of Aboriginal life and loss of rights under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as well as exemplary and aggravated damages arising out of the Commonwealth’s ‘conscious and contumelious disregard for’ or ‘wanton cruel and reckless indifference to’ their welfare and rights[46] ‘under the dictate of’ an allegedly general policy of removing so-called ‘half-caste’ children without regard to their individual circumstances.[47]
The Commonwealth was the sole defendant. The applicants did not sue the former holders of statutory office — the Directors of Native Affairs or the Director of Welfare[48] — nor did they join AIM, ABM or their staff.
The trial judgment is 1565 paragraphs long and not well organised. The judge refers to 32 people who gave evidence for the Commonwealth and 23 who did so for the applicants. Many Commonwealth witnesses were in their 60s and 70s. One was 92 years old.[49]
Mrs Cubillo sued in relation to her removal as an eight year-old child (Lorna Napanangka Nelson) in 1947 from Phillip Creek Native Settlement near Tennant Creek. There she had attended school and lived in a dormitory for ‘part-Aboriginal’ children.[50] Phillip Creek was run for the Commonwealth[51] Native Affairs Department by AIM.[52] At this time, as elsewhere in Australia, government relied on missionary organisations to administer and staff reserves and institutions.[53] Missionaries, though difficult for the missions to recruit, were prepared to do the job for subsistence when government found it difficult to hire similarly ‘committed’ people and ‘lacked’ the resources to pay them. Despite this, O’Loughlin J found that the Department had a ‘deep financial involvement’ in Phillip Creek.[54] Interestingly, Mrs Cubillo’s action did not relate to any earlier removal from her birthplace, Banka Banka station.[55] O’Loughlin J found her memories of an earlier removal from Banka Banka were an ‘exercise of reconstruction’.[56]
The judge found that Mrs Cubillo’s ‘mother’,[57] Maisie, was living at Phillip Creek when Lorna was taken.[58] As this was contrary to Mrs Cubillo’s evidence that Maisie had returned to Banka Banka (65 kilometres away) and visited her regularly,[59] O’Loughlin J held that she had not established that she was in the care of an adult when taken.[60] Her father (Horace Nelson, a white soldier) had deserted her, her biological mother had died, and there was conflicting evidence as to whether her grandmother was alive and living at Phillip Creek.[61] As a result, AIM may have considered her an orphan.[62]
Fifteen other children (many now still living) were removed with Lorna on the back of a truck driven by Native Affairs cadet patrol officer Les Penhall.[63] AIM’s Miss Amelia Shankelton organised the removal and travelled in the front of the truck. O’Loughlin J found that Mr Penhall acted as the Director’s delegate, but that the decision to remove the children was a ‘joint exercise’ with AIM.[64] He found that the removal caused the children and their families ‘terrible pain’.[65] Some, if not all, of the children removed may have been taken without their mothers’ consent.[66]
Lorna was detained in AIM’s Retta Dixon Home in Darwin, under the control of Miss Shankelton,[67] until she was 18. She left in October 1956, nine months after finishing year eight, to work as a live-in housekeeper.[68] O’Loughlin J found that Lorna Nelson was ‘viciously assaulted’ by a missionary on the staff of the home, Mr Des Walter.[69]
Mr Gunner was living in the ‘native camp’[70] on Utopia pastoral station in central Australia when he was removed in 1956, aged seven.[71] The judge found that he was then in the care of his mother, Topsy Kundrilba.[72] The identity of his father was unclear. For the purposes of this case note, it is worth noting merely that, on the evidence at least, it was not clear whether his father was a white stockman[73] or a member of a local family of ‘coloured’ (apparently ‘part-Aboriginal’) station owners.[74]
O’Loughlin J found that Peter was probably physically removed by patrol officer Harry Kitching.[75] However, he found that Topsy consented to his removal for the purpose of him receiving a ‘European’ education.[76] Her consent was informed,[77] and Mr Kitching promised Topsy that Peter would return for holidays.[78]
Peter was put in ABM’s St Mary’s hostel for Aboriginal children attending school in Alice Springs. By then, it was under the superintendence of Archdeacon W F Rogers. The hostel was later under the superintendence of Archdeacon A H Bott.[79] The warden, who had day-to-day control, was the rather ‘naïve’[80] Church Army Captain Colin Steep (later replaced by Mr Harold Bennier).[81] Peter left St Mary’s in 1962, aged 14.[82] O’Loughlin J found that welfare staff found work for him, but no longer detained him, on the Aboriginal-owned Angas Downs station.[83]
O’Loughlin J also found that, during Peter’s residence at St Mary’s, staff member Mr Kevin Constable had engaged in some kind of sexual impropriety towards him.[84]
Lorna Nelson was removed under the 1918 Ordinance, which gave ‘exceptionally wide’ powers ‘almost without restraint’ to the Director of Native Welfare (formerly[85] the Chief Protector of Aboriginals).[86] For the purposes of later analysis, I set out the statutory provisions at some length, although not all of them are so set out in the judgment. O’Loughlin J seems to have referred to the original 1918 Ordinance, disregarding amendments not directly material to the case before him. A consequence of this is that the judgment obscures the extension of the Ordinance’s controls on adults in the period 1927–41. This may make it more difficult for the reader to understand the impact of 1953 amendments which liberated ‘half-castes’ from the Ordinance, or the extent to which a change in the law in 1957 segregated adults and children of ‘preponderantly’ Aboriginal descent from those with more non-Aboriginal ancestors. These two reforms, which were important in Peter Gunner’s case, are discussed further below.
Like other ‘protection’ and ‘welfare’ laws, the 1918 Ordinance applied to statutory ‘aboriginals’ and ‘half castes’. It is important to understand that the meanings of these terms in such laws have not remained stable over time. Rather, those meanings have reflected policy decisions about the appropriateness of extending or contracting regulatory control over persons of Aboriginal descent.[87]
Section 3 of the 1918 Ordinance defined ‘aboriginal’ and ‘half caste’. As set out in the judgment, it provided that an ‘aboriginal’ included:
(a) an aboriginal native[88] of Australia or of any of the islands adjacent or belonging thereto; or
(b) a half-caste who lives with an aboriginal native as wife or husband; or
(c) a half-caste, who, otherwise than as the wife or husband of such an aboriginal native, habitually lives or associates with such aboriginal natives; or
(d) a half-caste male child whose age does not apparently exceed eighteen years; or
(e) a female half-caste not legally married to a person who is substantially of European origin or descent and living with her husband.[89]
‘Half-caste’ was defined in a circular manner as ‘any person who is the offspring of parents, one but not both of whom is an aboriginal and includes any person one of whose parents is half-caste’.[90] Thus many people of less than ‘half’ Aboriginal descent who were the descendants or associates of people to whom the 1918 Ordinance applied were treated as ‘aboriginals’.[91] Further, as the discussion of ss 6 and 16 below indicates, many of the Director’s powers applied to other ‘half-castes’ besides those defined as ‘aboriginals’.[92]
In 1947, s 7 of the 1918 Ordinance provided:
The Director shall be the legal guardian of every aboriginal and every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years, except while the child is a State child within the meaning of ... The State Children Act 1895 [(SA), as amended from time to time].[93]
The reference to the continuing South Australian legislation[94] in s 7 tells us something important about Aboriginal ‘protection’ and ‘welfare’ regimes. Aboriginal people have been at pains to point out that race-specific laws allowing removal of their children were unnecessary because the option of dealing with children in crisis was always available under ordinary child welfare laws.[95] O’Loughlin J makes no reference to this alternative having been available in the Northern Territory from the early 20th century.[96] This omission would be insignificant were it not for the fact that, as discussed below, when considering the later Aboriginal ‘welfare’ regime, his Honour confuses its institutions with those established by ordinary child welfare legislation.
Section 7 of the 1918 Ordinance has received some critical judicial attention,[97] but O’Loughlin J gave it very little, apparently regarding it as ‘mere repetition’ of duties imposed on the Director by other provisions of the Ordinance.[98] In particular, his Honour considered significant the fact that s 7 did not spell out duties imposed on the Director by virtue of his role as guardian.[99]
As discussed in Kruger, s 6(1) of the 1918 Ordinance provided:
The [Director] shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody.
Sub-section (3) provided that this power was exercisable even in relation to ‘aboriginals’ or ‘half-castes’ under contracts of employment.
O’Loughlin J does not always distinguish clearly between the s 6 power to take custody of a person and a related power to detain contained in s 16(1):
The [Director] may cause any aboriginal or half-caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another ... and to be kept therein.[100]
Sub-section (2) provided that an ‘aboriginal’ or ‘half-caste’ who resisted being so detained or refused to stay where the Director placed him or her was guilty of an offence. Importantly, sub-s (3) provided that the Director’s detention power did not apply to persons lawfully employed, those holding permits to be outside the reserve or institution, ‘females’ lawfully married to and living with husbands of (substantially) European descent or others for whom the Director believed ‘satisfactory provision is otherwise made’.[101]
Although some judges in Kruger treated the s 16 power to detain as also ‘circumscribed’ by a requirement similar to that expressed in s 6 — that it be exercised in the person’s interests[102] — O’Loughlin J takes the more accurate position that the person’s interests were only the ‘dominant consideration’, the other considerations being the interests of the child’s family and those of ‘the community generally’.[103]
No written records of any official decisions to take the Phillip Creek children into ‘care, custody or control’ or to detain them in Retta Dixon Home have survived.[104] This deficiency and the deaths of all but one of the officials[105] and AIM personnel involved[106] made it impossible for his Honour to determine whether the Director had purported to use his statutory powers in removing Lorna.[107] There was also no evidence that the Director exercised his s 16 powers to detain her before 1953.[108]
The ‘aboriginal institutions’ in which people could be detained were approved, and their Superintendents appointed, by the Administrator under s 13 of the 1918 Ordinance. The original s 13 provided:
(1) The Administrator may, by notice in the Gazette, declare any mission station, reformatory, orphanage, school, home or other institution established by private contributions to be an aboriginal institution for the maintenance, custody, and care of aboriginal and half-caste children, and shall thereupon issue a licence to the institution.
(2) Every such notice shall name some person as the Superintendent of the aboriginal institution.
(3) The Administrator may by notice in the Gazette revoke any declaration made in pursuance of this section, and thereupon the institution shall cease to be an aboriginal institution, and the licence issued to it shall forthwith be returned to the Administrator for cancellation.
(4) When from time to time the Superintendent of an aboriginal institution is changed the name of the new Superintendent shall be submitted to the Administrator for his approval.
(5) Upon any change being made in the persons constituting the governing authority of the aboriginal institution, the particulars of the change shall be immediately notified to the Administrator.
(6) Every aboriginal and half-caste child for the time being an inmate of any aboriginal institution shall be under the control and supervision of the Superintendent.[109]
For O’Loughlin J, s 13(6) was of great significance: it could
stand alone, independent of the Director ... and independent of s 6. In other words, the legislation permitted institutions to be established by appropriate charitable or religious bodies to care for Aboriginal or part-Aboriginal children. That was the purpose of s 13. Independently of that provision, ... s 6 ... authorised the Director ... in the circumstances postulated by that section, to undertake the care, custody or control of any Aboriginal or part-Aboriginal child. Having exercised that power in a particular case, it was then open to the director to cause the child to be kept in an institution ... operating under s 13.[110]
St Mary’s became an ‘aboriginal institution’ in 1946, initially under the respected Deaconess Eileen Heath.[111] Retta Dixon Home, which was physically located within Bagot Aboriginal Reserve, became an ‘aboriginal institution’ in December 1947, after Lorna Nelson arrived.[112] Miss Amelia Shankelton was appointed as Retta Dixon Superintendent.[113]
Finally, the Director’s general duties were set out in s 5(1) of the 1918 Ordinance:
(a) to apportion, distribute, and apply, as seems most fit, under the direction of the Administrator, the moneys at his disposal for the purpose of carrying out this Ordinance;
(b) to distribute blankets, clothing, provisions, and other relief or assistance to the aboriginals;
(c) to provide, as far as practicable, for the supply of food, medical attendance, medicines, and shelter for the sick, aged and infirm aboriginals;
(d) to provide, when possible, for the custody, maintenance and education of the children of aboriginals;
(e) to manage and regulate the use of all reserves for aboriginals; and
(f) to exercise a general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud.[114]
O’Loughlin J held that, although the Director enjoyed power under s 5(1)(e) of the 1918 Ordinance to ‘manage and regulate’ Retta Dixon Home because it was located on a reserve, his powers over institutions generally were more limited. Section 5(1)(f) gave him a power to oversee them, ensuring that they maintained appropriate standards. But he was not to involve himself in their staffing and day-to-day management.[115] A power to enter and inspect an institution was implied.[116]
Nonetheless, O’Loughlin J held that the Commonwealth enjoyed considerable control over the institutions. Its greatest lever was its direct financial aid to them.[117] There is not much detail in the judgment about how much the Commonwealth spent on the institutions before the 1950s, but it appears that, in the 1940s in addition to reallocated child endowment payments,[118] the Commonwealth provided land, buildings, furniture, transport, food and an annual grant, while the missions paid any nominal salaries.[119] Although in the 1930s and 1940s ‘the war effort’ probably absorbed funds which might have been spent on many social programs, I argue below that Commonwealth beneficence towards Northern Territory Aborigines under the 1918 Ordinance ought to be evaluated by comparison with Commonwealth spending elsewhere in the same period.[120]
Besides the Commonwealth’s financial ‘leverage’ over the institutions, O’Loughlin J considered that, ultimately, a Director dissatisfied with the institutions’ performance could remove children to other institutions or have the Administrator revoke their status under s 13 of the 1918 Ordinance.[121]
These amendments,[122] introduced after lobbying from a ‘Progressive Half-Caste Association’,[123] liberated most ‘half-castes’ from the 1918 Ordinance by redefining ‘Aboriginal’ to exclude them. The new s 3 provided that an ‘Aboriginal’[124] was:
(a) a person who is an aboriginal native[125] of Australia [or of adjacent Australian islands];
(b) a person who lives after the manner of, follows, adheres to or adopts the customs of persons described in paragraph (a) of this definition and at least one of whose ancestors was a person described in that paragraph;
(c) a person, being under the age of eighteen years, at least one of whose ancestors was a person described in paragraph (a) of this definition; and
(i) whose care, custody, or control has been undertaken by the Director under section six of this Ordinance before the date when the Aboriginals Ordinance (No 2) 1953 comes into operation; or
(ii) whom the Director has caused to be kept in a reserve or an aboriginal institution under section sixteen of this Ordinance, before the date when the Aboriginals Ordinance (No 2) 1953 comes into operation; or
(d) a person, at least one of whose ancestors was a person described in paragraph (a) of this definition, in respect of whom a declaration is made under section three A of this Ordinance ...
Before 1953, s 3A had functioned as the ‘dog ticket’ provision — it allowed the Director a completely unfettered discretion in granting revocable exemption certificates, initially to ‘half-castes’, then to all ‘aboriginals’, to release them from some or all of the controls of the 1918 Ordinance.[126] The 1953 Ordinance amended s 3A to make this power subject to the approval of the Administrator, and added a power to deem a person with an Aboriginal ancestor a statutory ‘aboriginal’ in one of two circumstances:
Just before the amendments commenced, the Director made a formal order under s 16 of the Ordinance committing Lorna Nelson to Retta Dixon Home until her 18th birthday.[127] This ensured that, as an institutionalised ‘half-caste’ under 18,[128] she remained an ‘aboriginal’ after 1953. She left Retta Dixon in October 1956, two months after the order expired.[129]
Peter Gunner was taken from Utopia in May 1956. As a person of ‘mixed’ Aboriginal descent living in a ‘native camp’, he probably remained an ‘Aboriginal’ under the amendments. However, almost a year later the Director took the extra step of deeming him an ‘Aboriginal’ under the new s 3A.[130] O’Loughlin J found that this occurred at his mother’s request,[131] although it is not clear that the statutory power could have been exercised on this basis.[132]
The 1953 Ordinance extended the Director’s guardianship powers. The new s 7 stated simply: ‘The Director is the legal guardian of all aboriginals.’
There was evidence before O’Loughlin J that former Directors regarded their s 7 guardianship powers as meaningful — for example, that they relied on them to contest the use of corporal punishment on people they already referred to as their ‘wards’.[133] However, for O’Loughlin J, ‘aboriginals’ in official guardianship under s 7 but not official custody under s 6 do not seem to have benefited from any meaningful relationship with the Director — his Honour still treated s 7 as merely repetitive of the Director’s other powers.[134]
The Director’s powers under s 6 to take an ‘aboriginal’ into custody or detain him or her in a reserve or institution under s 16 remained.
The judge found that Peter was also taken from Utopia at his mother’s request.[135] Both of her requests — that he be deemed an ‘Aboriginal’ and that he be taken to Alice Springs for education — were evidenced by her thumb print on a ‘form of consent’.[136] On the basis of this, his Honour held that the Director’s s 6 power was not invoked — indeed, that the Director was not involved at all.[137] What, then, was the lawful basis of Peter’s removal? It is possible that his Honour thought the removal could have been justified by reference to the Director’s role as guardian alone, but this seems unlikely given his conclusions about the meaningless nature of the guardianship provision. It seems that O’Loughlin J regarded the removal as having been effected under general law principles.[138] However, this raises some interesting questions.
First, the ‘form of consent’ was expressed in the language of the 1918 Ordinance, not the general law — it placed Peter in the ‘care, custody and control of [the statutory official] the Director of Native Affairs’ rather than that of any named individual.[139]
Secondly, it is not completely clear what Peter’s mother was doing under the general law. If O’Loughlin J’s interpretation of her actions is correct, she was probably consenting to someone else having custody of her son for the duration of his education.[140] His Honour declined to find that she had abandoned Peter[141] — a finding consistent with a temporary transfer of custody, rather than a permanent one. The finding that the patrol officer promised that Peter would return to Utopia for holidays also suggests that his mother intended to transfer his custody for a finite period. However, this promise was not kept, although some St Mary’s children did go home.[142] Likewise, Topsy did not visit Peter, although some St Mary’s children had visitors.[143]
Thirdly, to whom did Topsy transfer custody of her son? With the possible exception of s 7, no other provision of the 1918 Ordinance (as amended) besides s 6 allowed the Director to take custody. Topsy’s ‘consent’ refers to her son being placed in St Mary’s — perhaps the judge interpreted it as conferring custody on the St Mary’s warden?
Or did Peter’s mother intend that he should never return? Since she was not his guardian,[144] as opposed to having his custody, presumably she had no power to transfer him to another guardian permanently. It is submitted that, despite the gaps in the evidence about his mother’s intentions, the better view is that, since Peter Gunner was already an ‘aboriginal’ under the 1918 Ordinance, and the Director was already his guardian (which meant something, not nothing), he was removed by an exercise of the Director’s s 6 power, this power being exercisable even at a parent’s request.
O’Loughlin J accepted that, on 21 May 1956, the Director exercised his s 16 power to commit Peter to St Mary’s until his 18th birthday 10 years later.[145] However, as noted, he left the home in 1962.
By 1954, O’Loughlin J found, the Commonwealth subsidised 90 per cent of the institutions’ costs.[146] As discussed below,[147] this was consistent with a significant increase in Commonwealth spending on Aboriginal ‘protection’ from the 1950s.
This Ordinance commenced on 13 May 1957, repealing the 1918 Ordinance. There were no transitional provisions. Peter Gunner’s detention continued under the Welfare Ordinance, but it is not clear that it did so lawfully, for two reasons, only one of which was discussed by O’Loughlin J.
The first ground of possible illegality (not discussed by his Honour) depends on Mr Gunner’s father having been a white man. Between 1957 and 1961, the Welfare Ordinance operated in a racially discriminatory manner, by reference to accepted racial classifications in Commonwealth electoral law. O’Loughlin J seems not to have appreciated this. A similar lack of understanding of the fine distinctions in ‘degrees’ of Aboriginal descent upon which ‘protection’ and ‘welfare’ laws operated seems to have been evident in Williams.[148]
Section 14(1) of the Welfare Ordinance allowed the Administrator to declare certain Aborigines ‘wards’. In its original form, it provided:
(1) Subject to the provisions of this section, the Administrator may, by notice in the Gazette, declare a person to be a ward if that person, by reason of —
(a) his manner of living;
(b) his inability, without assistance, adequately to manage his own affairs;
(c) his standard of social habit and behaviour; and
(d) his personal associations,
stands in need of such special care or assistance as is provided for by this Ordinance.
(2) A person shall not be declared to be a ward if that person is —
(a) a person who, under Part V of the Northern Territory Electoral Regulations —
(i) is entitled to vote at an election of a member of the House of Representatives for the Northern Territory;
(ii) would, but for his being under twenty-one years of age, be entitled to enrolment, subject to the provisions of Part VI of those regulations and to vote at such an election; or
(iii) would, but for his not having resided in Australia for six months continuously, [be entitled to enrol and to vote];
(b) [a person holding an exemption certificate under the Immigration Act 1901 (Cth).]
Peter Gunner was declared a ‘ward’ on the day the Welfare Ordinance commenced.[149] It was also possible to become a ward by other means — by requesting it under s 14(3),[150] or by entering the Northern Territory while under Aboriginal ‘welfare’ legislation of a State.[151] A court could also place a person in the Director’s care instead of convicting him or her of an offence.[152] However, between 1957 and 1961, the only people who could be declared wards by the Administrator without their consent were persons not entitled to vote in elections for the Northern Territory House of Representatives seat, those who could not acquire those rights on majority, and transient aliens.[153] This position changed in 1962 when s 14(2) was repealed,[154] making the Welfare Ordinance race-neutral.
O’Loughlin J incorrectly described the administrative power to declare a person a ‘ward’ as one extending ‘to all citizens of the Territory’.[155] This may be a correct description of the ‘race-neutral’ regime originally proposed by the Commonwealth, but it is not a correct description of the law as it came into force — as recognised by the High Court in the 1950s in Namatjira v Raabe.[156] Section 14(2) of the Welfare Ordinance was introduced as a result of an amendment by the Northern Territory Legislative Council to ensure that whites could not be declared wards. While it is widely believed that Aborigines generally were disenfranchised under Commonwealth electoral law before 1962, in fact those disenfranchised had to be ‘aboriginal natives’.[157] This was a term of art interpreted by a succession of Commonwealth Attorneys-General advising on the Commonwealth Electoral Act 1918 (Cth) to mean ‘persons of “preponderantly” Aboriginal descent’. ‘“Preponderantly” Aboriginal’ was a notoriously difficult test to apply, but in their view, it did not include ‘half-castes’.[158]
This means that, if Peter Gunner’s father was a white man, even if his mother was of ‘full’ Aboriginal descent, he was not an ‘aboriginal native’. As a result, in 1957, when he had potential future voting rights, he should not have been declared a ward by the Administrator unless he had asked to become one. (Perhaps the Director realised his mistake. As discussed below, there was no evidence that he used his new power to detain ‘wards’ in institutions to detain Peter Gunner again under the Welfare Ordinance.) However, if Peter Gunner’s father was a ‘coloured’ man, the Administrator had power to declare him a ward without his consent. Of course, if his mother had lawfully placed him in the Director’s custody as a matter of private law in 1956, it is arguable that his ongoing detention was justified on that basis, at least until his ‘education’ was complete.[159]
One of the reasons why O’Loughlin J’s discussion of the Welfare Ordinance fails to comprehend its discriminatory operation may be that his Honour seems to have confused the institutions and operation of this law for adults and children with those of the ordinary child welfare legislation. As noted, the State Children Ordinance (NT) (originally the State Children Act 1895 (SA)) established a State Children’s Council responsible for ‘neglected’, ‘destitute’ and other ‘State’ children.[160] Before 1958, this Ordinance and the Children’s Protection Ordinance (NT) (originally the Children’s Protection Act 1899 (SA)) allowed these children to be institutionalised.[161] After 1958, the Child Welfare Ordinance 1958 (NT) permitted the institutionalisation of a ‘State child’ only by court order.[162] This Ordinance replaced the State Children’s Council with a Child Welfare Council with mainly advisory functions.[163] The person responsible for administering the Child Welfare Ordinance 1958 (NT), and the new guardian of ‘State children’ was the Director of Child Welfare.[164] The evidence before O’Loughlin J suggested an overlap in personnel between the two ‘welfare’ regimes without really explaining its basis.[165] The explanation, however, is threefold: first, the Director of Welfare (Mr Giese) was also appointed Director of Child Welfare;[166] secondly, the Welfare Branch was divided into four divisions, of which ‘Native Welfare’ and ‘Child, Family and Social Welfare’ were two;[167] and, thirdly, the same ‘welfare officers’ were appointed to different functions under both Ordinances.[168] Thus ‘wards’ and ‘State children’ were subject to the same administration — but not the same law.
It seems likely that many ‘coloured’ people educated while in ‘care’ were actually ‘State children’, not ‘wards’.[169] However, the evidence before O’Loughlin J seemed to indicate that ‘wards’ and ‘State children’ were treated as distinct categories.[170] There was nothing in the evidence to suggest that Peter Gunner had been treated as a ‘State child’.
The Welfare Ordinance continued to allow the new Director of Welfare to take ‘wards’ into custody or detain them in reserves or institutions. However, there was now an important limit on this power. Section 17 provided:
(1) Where the Director considers that it is in the best interests of a ward, he may —
(a) take the ward into his custody;
(b) authorize a person to take the ward into custody on behalf of the Director;
(c) order that the ward be removed to, and kept within, a reserve or institution;
(d) order that the ward be kept within a reserve or institution; and [sic]
(e) order that the ward be removed from one reserve or institution to another reserve or institution.
(2) The Director shall not exercise a power under the last preceding sub-section if by so doing —
(a) a child under, or appearing to be under, the age of fourteen years would be removed from his parents; or
(b) a parent would be removed from his children,
unless the Administrator has, in writing, authorized the Director so to do.[171]
The second possible problem with the lawfulness of Peter Gunner’s detention was that there was no evidence of the Director exercising his s 17 power to recommit him to St Mary’s after he declared him a ward.[172] Importantly, the assault by Mr Constable occurred during this period.
The new Director of Welfare remained guardian of all ‘wards’, but this role was defined much more specifically than under the Welfare Ordinance. From late 1957,[173] s 24[174] provided:
(1) Subject to this Ordinance, the Director is the guardian of the person and the estate of a ward as if that ward were an infant and the Director were the guardian of that infant for all purposes except —
(a) the commencement of proceedings by a ward against —
(i) the Director; or
(ii) a person other than the Director, in respect of an act which, in the opinion of the Director, was lawfully done by that person in the course of and for the purpose of his duties under a law of the Territory;
(b) the commencement of proceedings by or against a ward certified in writing by the Director to be, in the opinion of the Director, capable of commencing or defending the proceedings, as the case requires;
(c) the commencement of proceedings by a ward against another ward; and
(d) the defence by a ward of proceedings commenced against him by another ward.
Sub-section (2) allowed the Director to appoint next friends for wards who were parties to proceedings against one another.
And, although O’Loughlin J makes no reference to it, the Welfare Ordinance also appointed the Director ‘trustee’ of the ward’s property (ss 25, 27).[175] Given the difference between these provisions and the bare guardianship provision of the 1918 Ordinance, it seems inappropriate for his Honour to have treated them as essentially the same.
Section 40 provided:
The Administrator[176] may, subject to such conditions as he thinks fit and as are prescribed, approve a mission station, reformatory, orphanage, school, home or other establishment, whether within the Territory or otherwise, as an institution for the purposes of this Ordinance.
Although O’Loughlin J did not make it clear, there was no provision equivalent to the former s 13(6) of the 1918 Ordinance, placing institutional inmates under a Superintendent’s control. This must have meant that, if Peter Gunner’s presence in St Mary’s relied on his mother having placed him there, and if he was not properly declared a ‘ward’, he was free to leave any time after 1957. O’Loughlin J acknowledged the possibility that the Director may have ‘perhaps merely in a de facto sense, perpetuated his control over Peter ... by participating with St Mary’s in retaining the children at the Hostel’.[177]
Finally, s 8 provided:
It is the duty of the Director —
(a) in relation to wards, to take steps —
(i) to promote their social, economic and political advancement for the purpose of assisting them and their descendants to take their place as members of the community of the Commonwealth;
(ii) to arrange as far as is practicable for the education of wards, including their vocational training, by collaboration with, and assistance to, the education authority and educational institutions and in other appropriate ways;
(iii) to promote their physical well being, to inculcate proper habits of hygiene and sanitation and to improve their standards of nutrition and housing;
(iv) to detect, prevent and cure disease and for that purpose to establish and maintain a liaison with the Commonwealth Department of Health;
(v) to arrange for their vocational training and to obtain suitable employment for them in industrial and other enterprises and for this purpose to establish and maintain a liaison with appropriate organizations;
(vi) to provide such relief and assistance as is necessary or appropriate; and
(vii) to exercise a general supervision and care over matters affecting their welfare.
(b) subject to direction by the Administrator, to apply and apportion moneys made available for the purposes of this Ordinance in such manner as he considers proper;
(c) to supervise and regulate the use and management of institutions, other than institutions established by the Commonwealth;
(d) to control the management of institutions established by the Commonwealth;
(e) to supervise and regulate the management of reserves;
(f) in relation to persons other than wards, upon such conditions as the Administrator approves, and in relation to persons who are in indigent circumstances, upon such conditions as the Director sees fit —
(i) to arrange for those persons to be accommodated in institutions ...[178]
O’Loughlin J made no reference to sub-s (f) of s 8.[179] It is possible that, after 1957, the Director dealt with Peter Gunner as a non-ward under s 8(f). However, this would not have excused any continuing detention of him against his will, if that is in fact what occurred.
In O’Loughlin J’s view, ‘[t]he language of [sub-ss (c), (d) and (e) of s 8] differ[ed] substantially from the language that was previously found in s 5(1)(e) and (f) of the 1918 Ordinance’, but the effect on the inmates of St Mary’s was the same. There was only a duty to ‘supervise and regulate’ the use and management of private institutions like St Mary’s, not a duty to become involved in their day-to-day management. This included ensuring that such institutions met appropriate standards.[180]
The sum total of the Commonwealth’s influence over the institutions from 1957 was significant:
The guardianship of the director, the director’s duties of supervision and regulation, the licensing powers of the Administrator and huge funding assistance, when coupled together, meant the director, the Administrator and the Commonwealth, in combination, were able to wield a substantial influence over the institutions. That influence was so great that, in the final analysis, the administration could have closed down an institution.[181]
His Honour reached this conclusion despite evidence from former Welfare staff that the Director would have difficulties finding alternative places for children in the Territory at that time.[182]
The applicants challenged the lawfulness, under the Ordinances, of Commonwealth ‘removal policy’ relating to ‘part-Aboriginal’ children. They claimed that there was a ‘blanket’ Commonwealth policy of taking all children of white men. They claimed there were four unlawful purposes behind this ‘blanket’ policy:[183]
O’Loughlin J’s approach to policy issues was to treat them as relevant only to the extent that they illuminated the particular treatment of Mrs Cubillo and Mr Gunner.[184] This was the case in relation to past policy as well as modern developments — for example, the Bringing Them Home report[185] was neither tendered in evidence nor referred to by counsel,[186] and, although his Honour was aware of parliamentary apologies (or other statements) to members of ‘the Stolen Generation’, he regarded reference to these as inappropriate in reaching his decision.[187]
Thus, for example, whether or not mid-20th century Commonwealth ‘part-Aboriginal’ policy reflected prevailing knowledge about the importance to children of parental affection, the question for his Honour was whether on the evidence the particular removals failed to take account of the importance of parental affection to these children in a manner that was either unlawful under the Ordinance or unreasonable for the purposes of any superimposed common law duty of care, or both.[188]
In assessing the plaintiffs’ allegations, O’Loughlin J surveyed 20th century Commonwealth ‘part-Aboriginal’ policy. This survey is of considerable interest for future Northern Territory cases. However, it is not always located in the context of wider ‘Aboriginal’ policy and practice. For example, an assessment of whether Commonwealth policy (or perhaps, more accurately, the Directors’ practice) was to promote ‘biological assimilation’ of people of ‘mixed’ descent into the white population might take account not only of the Directors’ approach to removing ‘half-caste’ children, but their approaches to their power to control the marriages of ‘aboriginals’ or ‘wards’ to non-‘aboriginals’ or non-‘wards’. There was evidence before O’Loughlin J that, as late as 1953, the Director denied a ‘half-caste’ former Retta Dixon inmate who had grown out of her ‘aboriginal’ status permission to marry an ‘aboriginal’ until she revealed that they were expecting a child.[189] This evidence is consistent with other accounts of Directors’ manipulation of the power,[190] including in the 1950s.[191]
His Honour assessed the lawfulness or reasonableness of past policy by the standards of the ‘misguided paternalism’ of the 1940s and 1950s, not modern standards.[192] Over the past 50 years there had been changes in ‘the mapping of our moral and social values towards the Australian Aborigine’,[193] and in attitudes to:
Interestingly, unlike Abadee J in Williams [No 2] (Trial),[199] O’Loughlin J concluded that ‘the importance of affection in a child’s normal development and the role played by parental affection in behaviour disorder’ was understood in Australia as early as the 1940s.[200] He also acknowledged that, from the beginning, child removal policies may have met with community disquiet.[201]
O’Loughlin J was clearly impressed by the people who administered former Commonwealth policy:
The calibre of the former officers of the Native Affairs Branch and the Welfare Branch who gave evidence in this trial was exceptionally high. Many ... were highly educated and many subsequently achieved high postings in government in later life. ... [They were] people of intelligence and experience who might be expected to have knowledge and awareness of the policies that existed in relation to Aboriginal and part-Aboriginal people and the manner in which those policies were implemented.[202]
There was no evidence before the Court of the number of ‘part-Aboriginal’ children in the Territory at any time, nor of their paternity in racial terms. This is not particularly surprising, especially for the years before 1947, when the Aboriginal population was the subject of estimates only,[203] but also for the period before 1967, when Bureau of Statistics censuses did not extend to the Aboriginal population.[204] Births to Aboriginal mothers, especially in remote areas, were often not recorded — or, as occurred with Lorna Nelson and Peter Gunner,[205] they were recorded by a patrol officer long after the event. In the early decades, ‘half-caste’ children were still likely to have been conceived as a result of casual sexual liaisons between Aboriginal women in ‘native camps’ accessible from public roads, and increasingly mobile, unfamiliar, single and morally untrammelled white men.[206] If their fathers were aware of the children’s births, their most likely reaction was to disown them; ‘having a yellerfeller’ may have been something to tell one’s mates but not the state.[207] As elsewhere in Australia, the composition of the ‘half-caste’ population began to change as ‘half-castes’ themselves bore children.[208]
Aboriginal accounts also indicate that those charged with the ‘protection’ of ‘aboriginals’ were not above engaging in sexual intimacies with them, including as a form of trade.[209] Similarly, as noted below, there was evidence before O’Loughlin J that the end of World War II left the administration with a larger than usual number of such children to ‘bring in’. Although the judgment does not make this clear, the births of the ‘Phillip Creek children’ seem related to military occupation of the Territory during the war. In the 1930s, military camps were established to build the strategic road between Alice Springs and Darwin.[210] The Territory came under military administration in 1942.[211] According to a former Commonwealth Minister, there was a large military camp on Banka Banka station, where Lorna Cubillo was born. In his view, the children were the result of ‘illicit, casual liaisons’ between ‘camp followers’ and soldiers. This was not surprising, ‘knowing what has happened in former wars’.[212]
If Official Year Book of the Commonwealth of Australia figures are reliable, the number of ‘half-caste’ children and adults in the Northern Territory hovered around 2000 during the decade from 1952.[213] If the figures given by O’Loughlin J for numbers of children removed under the race-specific laws[214] are reliable, it seems his Honour was correct to state that these ‘do not support an argument that there was a large scale policy of forced removals’.[215] Especially given the small number of institutions and institutional places, O’Loughlin J was ‘satisfied that the number of such children far exceeded the ability of the Commonwealth to implement a policy of indiscriminate removal irrespective of the personal circumstances of the child’.[216] This analysis does appear limited to the race-specific laws: it takes no account of the increasing numbers of ‘part-Aboriginal’ children in the care of the State Children’s Council[217] for ‘ordinary welfare’ reasons, which may or may not have reflected cultural stereotypes. These children (and probably many of their parents) seem to have been people ‘liberated’ from the race-specific laws.
His Honour found that, from before World War II, there had always been a policy of removing ‘neglected’ children and ‘orphans’.[218] O’Loughlin J also did not rule out the possibility that early Commonwealth policy of ‘rescuing’ other ‘half-castes’ from ‘native camps’ was influenced by eugenicist thinking.[219]
One point of interest not brought out in the judgment relates to the nature of Commonwealth spending on Aboriginal ‘protection’ in this period. As Andrew Markus has pointed out, in 1923–24 more was spent on the Governor-General than on ‘protection’ of Territory Aborigines.[220]
Although O’Loughlin J did not rule out the possibility that pre-war Commonwealth policy may have been influenced by eugenicist thinking, his Honour treated any eugenicist tendencies as overtaken by a 1939 policy directed to removal of all illegitimate children of white fathers from their Aboriginal mothers. These children — who were mainly found on cattle stations[221] — were treated as the administration’s responsibility, rather than that of their parents, which was the case for ‘half-caste’ children born ‘in wedlock’.[222] From 1939, these children were removed for separate education, mainly for domestic or pastoral work.[223] However, during the war, ‘no removals were effected’, leaving many children to be brought in afterwards, much older than their preferred age, which was soon after birth.[224]
His Honour found that destruction of family and cultural associations may have been a consequence of post-war Commonwealth policy but was not its purpose.[225] Rather, ‘“assimilation”, in the sense of social integration’ was promoted from the early 20th century as being in the children’s ‘best interests’. It was ‘prompted by the twin forces of a sense of responsibility for the care of the children and concern for their welfare as potentially unwelcome members of the Aboriginal community’.[226] His Honour found no evidence of attempts to ‘breed out the colour’ or to ensure a supply of domestic and manual labourers after World War II.[227] A ‘perceptible change in attitude’ after the war led to desegregated education of ‘part-Aboriginal’ children.[228] Indeed, some families sent children to the institutions for schooling.[229] (Secondary education was not available in the Territory before 1953.[230] In the mid-1950s, the Commonwealth funded the interstate education of some ‘part-Aboriginal’ children.[231])
O’Loughlin J found that no ‘blanket’ policy of removal of all ‘part-Aboriginal’ children could have been applied to Cubillo or Gunner,[232] because no such policy existed in the 1940s or 1950s, and it was beyond the capabilities of the Commonwealth or the missions to implement one.[233] Children were taken in their ‘best interests’.[234] However, at no time did removals require family consent[235] — rather, arm-twisting was a common experience.[236]
As for the pre-war period, the judgment does not make clear just how little was spent on Aboriginal ‘protection’ before 1950. An analysis of Official Year Book of the Commonwealth of Australia figures indicates that the vice-regal salary and expenses still outstripped spending on the Territory’s Aborigines in 1944–45,[237] and that only in 1949–50 did ‘protection’ spending begin significantly to exceed the cost of maintaining the Head of State.[238]
In 1952, the Minister for Territories, Paul Hasluck, approved principles allowing ‘[p]artly coloured children found in aboriginal camps or a similar environment[239] [to] be removed, if the Director ... thinks it necessary in the interests of the children’, including where they were neglected or in need of medical care, the mother had expressly requested removal[240] or the Director was ‘satisfied that a painstaking attempt has been made to explain to the mother the advantages to be gained by the removal’.[241] Hasluck insisted that ‘the interests of the child are to be paramount’ and maternal feelings respected. Children should receive a full opportunity to live, and earn their livings, like Europeans.[242] O’Loughlin J found that the Native Affairs Department applied these principles when Peter Gunner was removed.[243] O’Loughlin J found that after 1957 Native Affairs patrol officers sought evidence of mothers’ consent to removals by way of thumbprints on standard forms of the kind provided by Gunner’s mother.[244]
In 1959, Assistant Director Ted Milliken compiled detailed, searching tests to be applied by patrol officers considering whether ‘part Aboriginal’ children should be removed from settlements or pastoral properties. These directed attention to the child’s acceptance within the ‘native camp’, his or her personal outlook, manner of life, educational level and employment prospects, the parent’s and child’s wishes, the attitude of the pastoral managers and ‘the subject of total life adjustment’.[245] The officer was asked why he and the mother considered removal was best, whether the mother had consulted her husband or brother on the subject, and whether she sought to maintain contact with the child.[246] There was evidence that a child would only be removed if his or her life was at risk or there was a prospect of ‘moral degradation’. The tests asked officers to justify a ‘continuation of pressure ... to effect the removal’.[247]
By the 1960s, O’Loughlin J found, ‘assimilation’ no longer focused on child removal, but ‘neglected’ children continued to be removed.[248]
To the extent that there was evidence of the removal of Lorna Nelson and Peter Gunner, these removals appeared consistent with Commonwealth policy of the relevant time. Lorna Nelson was the ‘illegitimate’ child of a white man and appeared not to be in an adult’s care — that is, she appeared to be ‘neglected’ or an ‘orphan’. Peter Gunner was a ‘[p]artly coloured child ... found in [an] aboriginal camp’ whose removal the Director thought necessary in his educational interests after Native Affairs gave his situation lengthy ‘individual consideration’ and his mother gave her informed consent.[249]
Before 1961, when Retta Dixon Home was located inside Darwin’s Bagot Aboriginal Reserve,[250] there were concerns about its proximity to Aboriginal men, ‘drinking and gambling’.[251] In the 1940s and 1950s, the home’s dormitories, like much of Darwin’s post-war accommodation (including that used by the Native Affairs Branch of the Northern Territory Administration[252]) were ex-army huts. Older girls slept in the army’s former gaol, locked in for their protection.[253] Although there were some hygiene problems,[254] witnesses remarked on the home’s ‘extreme’ cleanliness.[255] The judge found that physical conditions ‘were in need of substantial improvement’,[256] but ‘were not so bad as to create a cause of action’. They were better than conditions at Phillip Creek, of which Mrs Cubillo did not complain.[257] By the 1950s, Retta Dixon was ‘crowded’, with around 100 residents. However, O’Loughlin J refused to find that overcrowding was an ongoing problem or one that affected Lorna Nelson.[258]
Retta Dixon Home also took in single ‘half-caste’ mothers and babies[259] and young ‘half-caste’ girls working in Darwin, including, for 9 months, Lorna Nelson herself.[260] By the 1950s, some children lived with a staff family in ‘cottage accommodation’.[261]
AIM found it difficult to recruit staff.[262] Several worked for subsistence.[263] Native Affairs expressed concerns about the home’s ‘far too restrictive’ religious training[264] and ‘very limited’ evening recreation: children were not permitted to go to the pictures, dances or social evenings.[265] An Acting Director regarded ‘the majority of ex-Retta Dixon Home children’ as part of ‘the slum element ... of Darwin’.[266] At one stage, the Administrator complained that regular Retta Dixon–Bagot Reserve prayer meetings resulted in ‘undesirable’ liaisons between ‘coloured girls’ and ‘full blood Aborigines’.[267]
Retta Dixon Home children attended ordinary schools. Some went home for holidays and some relatives visited.[268] O’Loughlin J would not find that the home prevented Lorna’s ‘mother’ from visiting her, although the former Phillip Creek children were not visited.[269] There was some evidence that the emotional needs of older girls like Lorna went unmet.[270] However, as adults, Mrs Cubillo and her witnesses visited and corresponded with Miss Shankelton after they left the home. At least one witness placed her child in the home and another spoke with ‘obvious feeling’ of a female staff member.[271] Commonwealth evidence about conditions was ‘in marked contrast’ to Mrs Cubillo’s case.[272] In this context, O’Loughlin J was inclined to attribute her feelings of being ‘unloved and unwanted’ to her ‘personality and character’, not to missionaries’ treatment of her.[273]
At Retta Dixon, children performed chores, but also played after school.[274] There was evidence of girls being trained in baby care and domestic work from a young age.[275] In her time, Lorna was the only child to progress to high school.[276] Although some witnesses recalled little contact with Native Affairs or Welfare,[277] there was evidence that one Director gave runaway boys vocational tests and found them jobs.[278]
This Director (Harry Giese) also tried to ban corporal punishment,[279] but yielded to Minister Hasluck’s view that this was ‘far-fetched and unreal’.[280] O’Loughlin J found that Retta Dixon children were subject to corporal punishment which today would be regarded as ‘very severe’, but not ‘excessively so’.[281] However, children were not usually ‘flogged’, as Mrs Cubillo claimed.[282] Any punishment for using Aboriginal languages was likely to have been designed to foster communication between children and between children and staff.[283] There was conflicting evidence as to whether children were punished for bed-wetting.[284]
O’Loughlin J found (on the Briginshaw[285] standard) that on one occasion Lorna Nelson was seriously assaulted by Retta Dixon staff member Mr Des Walter.[286] Mr Walter ‘began thrashing Lorna in a rage’ with his belt buckle after she and other girls left a picnic camp at Berry Springs, 50 kilometres from Darwin.[287]
Although O’Loughlin J had reservations about Mrs Cubillo’s other evidence (see below), on this issue he was prepared to accept her word and that of other former Retta Dixon inmates[288] over Mr Walter’s denials. Mrs Cubillo and her witnesses gave evidence of serious injuries to her face and breast.[289] By contrast, Mr Walter admitted merely that he ‘chastised’ her, and that the girls took the unprecedented step of running away, hitchhiking back to Darwin. In O’Loughlin J’s view, ‘nothing short of a most serious, threatening situation would have caused a group of girls to run away in such circumstances’.[290] His Honour found Walter ‘a man with supposedly deeply rooted Christian convictions, but with a dogmatism that I found disturbing’.[291] His Honour also accepted documentary evidence (denied by Walter) that he was a ‘basher’,[292] and applied the rule in Jones v Dunkel[293] to infer that the evidence of Mr Walter’s wife, who was not called to give evidence, would not have assisted the Commonwealth’s case.[294]
O’Loughlin J also found that Walter was involved in an incident in a car alone with Lorna when he placed his hand on her thigh and made her cry.[295]
St Mary’s hostel accommodated about 65 ‘part-Aboriginal’ children attending local schools, and some older girls working in town. It was situated on 180 hectares in Alice Springs.[296] Children — including some whose parents paid their board because they saw the advantages of education[297] — were accommodated in four ex-army dormitories with ablution facilities close by.[298] By 1959, a ‘cottage’ system was being introduced.[299]
However, O’Loughlin J found the evidence ‘a damning indictment of St Mary’s’.[300] The hostel failed to provide proper facilities, administration and care.[301] Physical conditions were ‘unsatisfactory on today’s standards and ... [those] of the day’,[302] even if they were better than those in ‘native camps’.[303] Although Sr Heath’s earlier administration had been mature and competent, Captain Steep’s was not.[304] The Church found it hard to recruit staff because pay was low.[305] Captain Steep and his staff (many of whom were volunteers) lacked child care qualifications or administration experience.[306] Health management and record-keeping were poor.[307] Some children were denied proper medical services, but this was not a regular problem and did not affect Peter Gunner.[308]
Welfare officers, the Director and the Administrator criticised the home.[309] In January 1956, just before Peter Gunner’s admission, the Minister threatened to withdraw its funding.[310] Management, but not facilities, improved under the Benniers in 1959,[311] but when they left without replacements in 1961, ‘shocking’ reports on health, hygiene and lack of record-keeping recommenced.[312] A particularly critical welfare officer said St Mary’s reminded her ‘of the Poor Law Institutions’.[313] Even Archdeacon Bott complained about ‘stinking slum conditions’.[314] However, the Welfare Branch did not stop admitting children.[315]
Children were permitted visitors,[316] and some children went home for holidays.[317] However, O’Loughlin J found that Topsy did not visit Peter and he did not go home. Why he did not was ‘a mystery’.[318]
O’Loughlin J found there was no policy against Aboriginal language use at St Mary’s, but children were made to learn English.[319] Gunner was ‘punished severely’,[320] possibly for eating with his hands and using his language. However, even though a rubber hose may have been used,[321] O’Loughlin J found the evidence did not show the punishment was excessive on the standards of the day.[322]
Outside school hours there were chores but time for play. One staff member enlisted the children to dig a swimming pool,[323] which was ‘a wonderful achievement’.[324]
O’Loughlin J found (again, on the Briginshaw standard[325]) that there was sexual misconduct by staff member Mr Kevin Constable,[326] including against Gunner.[327] In his Honour’s view, Mr Constable’s admitted conduct of ‘cleaning’ adolescent boys’ penises with glycerine to ‘soften the smegma’ for ‘hygiene reasons’ was ‘grossly improper’.[328] Mr Constable’s further admission that, without obtaining a doctor’s examination of the child or consulting the St Mary’s nurse, he applied a salve to another witness’ penis three times when the boy had ‘part erections’ was ‘perverted behaviour’.[329] O’Loughlin J could not accept that ‘a responsible carer of adolescent boys’ would behave in this way, even 40 or 50 years ago.[330]
O’Loughlin J found it difficult to accept Mrs Cubillo’s professed desire to find out more about her ‘tribal life’. Although she travelled to Tennant Creek while living at Retta Dixon in 1955–56, she never visited her ‘mother’ there again before her ‘mother’s’ death in 1979. Her dealings with her ‘mother’s’ daughters (her ‘sisters’ in Aboriginal society) were brief. She had made only two further visits to her Aboriginal ‘brother’.[331] Although she had not been a ‘free agent’ who ‘chose western civilisation’ over Aboriginal culture in 1955–56, since then ‘she has elected to stay wholly in an urban environment’. ‘I accept ... that her removal and her continued presence at Retta Dixon was responsible for her loss of her Aboriginal culture and her native tongue.’ ‘[But] I am not satisfied that ... she wanted to return ...’[332] This was to be contrasted with the approach of some other former Phillip Creek children, who had returned to live in Tennant Creek or made regular visits to their families there.[333] Yet relocation to Tennant Creek could have helped minimise Mrs Cubillo’s cultural losses.[334]
After Angas Downs, Mr Gunner worked on other stations, then in Mount Isa and Darwin[335] and as an Alice Springs Aboriginal Legal Aid field officer. He first visited Utopia in 1969, returning later that year with his cousin, Florrie Ware.[336] He returned to live there in 1991.[337] Although Mr Gunner had twice attempted suicide, possibly due to concerns about his family or mother, O’Loughlin J could not accept his statement that this had something to do with ‘the Commonwealth’.[338] Although he had been local Council chairman, Mr Gunner said he was deprived of decision-making power over land at Utopia because he had not been initiated.[339] But O’Loughlin J found his loss could be mitigated by undertaking a lesser form of initiation undertaken by other adults.[340]
Both applicants argued that, but for their removal and detention, they would have been recognised as ‘traditional Aboriginal owners’ under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).[341] O’Loughlin J accepted that ‘Aboriginal people have an immensely strong attachment to their land’ which ‘was an essential constant that made their plan and code of living intelligible’.[342] ‘This ... was recognised by white Australians in the 1940s and 1950s’, although Mr Penhall’s evidence was that, at that time, ‘Aboriginal tradition was strictly patrilineal descent’, according no land rights to children with white fathers.[343] His Honour accepted evidence from Central Land Council lawyer, Mr Avery, about the manner in which the council determines the identity of ‘traditional Aboriginal owners’.[344]
Mrs Cubillo alleged that she was not recognised as a ‘traditional Aboriginal owner’ for any of four areas of Aboriginal land granted from 1981[345] or a fifth recommended for grant. Mr Avery’s evidence supported her. Mr Gunner claimed he was not recognised for either of two areas to which he might have been entitled, the first of which was granted in 1979.[346] However, Mr Avery’s evidence was that the Council recognised him as a person to be consulted in relation to his mother’s country for one area of Aboriginal land, and as a claimant for a third land claim. O’Loughlin J regarded this as ‘of substantial significance’ because ‘it shows that Mr Gunner has obtained a place of recognition by [sic] the tribal elders’.[347]
O’Loughlin J’s decision placed heavy reliance on the documentary record.[348] It did so as a matter of necessity where important witnesses to the events under consideration were dead.[349] Documentary history has the additional advantage that it is not affected by the vicissitudes of human memory, particularly in relation to events witnessed long ago by small children. However, the judgment has been criticised for its lack of sensitivity to the possibility that the written word may have failed to record accurately Aboriginal perspectives on these events.
This criticism mainly relates to O’Loughlin J’s discussion of the ‘form of consent’ signed by Peter Gunner’s illiterate, non-English-speaking mother. The form was ‘couched in very formal language and some might think that it would be difficult to understand how its contents could have been accurately translated to an Aboriginal mother who spoke no English’.[350] However, even if the document were ‘a nullity’ because its contents were not explained, a
line of documents that were compiled in the Native Affairs Branch [relating to Mr Gunner and efforts to explain the benefits of education to his mother] favours a positive conclusion that Topsy gave her informed consent to her son going to St Mary’s.[351]
This finding was buttressed by the fact that Mr Gunner did not call his mother’s four sisters, his mother’s brother’s wife or his cousin,[352] who may have witnessed his removal[353] and could have testified as to whether it was forcible or consensual.[354] His Honour applied the rule in Jones v Dunkel[355] to infer that the evidence of these women would not have assisted Mr Gunner’s case.[356]
O’Loughlin J regarded some of the applicants’ evidence as unreliable:[357]
I have no doubt that they believe that their experiences ... were legally, as well as morally, wrong. Armed with this powerful persuasion, there is the risk that ... they may have given distorted accounts ... I am concerned about their ability to recall, accurately, events that occurred so many years ago when they were small children. I am also concerned that they have unconsciously engaged in exercises of reconstruction, based, not on what they knew at the time, but on what they have convinced themselves must have happened or what others may have told them.[358]
The ‘intelligent’[359] Mrs Cubillo sometimes created an unfavourable impression under cross-examination by becoming ‘progressively defensive, evasive and argumentative’[360] or by giving ‘rambling non-sensical’ replies.[361] She insisted she remembered an incident in her early life (her removal from Banka Banka) which expert testimony indicated she could not have recalled and her sister’s evidence indicated did not occur.[362] She had ‘magnified ... over the years’ a detail of the journey from Phillip Creek to Darwin.[363] Her insistence that ‘[o]ur language was flogged out of us’ at Retta Dixon was an exaggeration.[364] O’Loughlin J was perplexed by her ‘deliberate attempt to mislead the Court’ by denying having conducted an interview with another former inmate.[365]
Although O’Loughlin J regarded Mr Gunner as a truthful person,[366] he found him ‘a very poor witness’,[367] ‘slow thinking and easily confused’, ‘sullen and moody’.[368] Much of his evidence was ‘highly confusing’ and ‘quite obtuse’[369] and he was ‘confused over many of his childhood memories at St Mary’s’.[370] Gunner had difficulty identifying Mr Kevin Constable from photographs, causing ‘a furore’ when he identified another man whose photograph was then published in the press.[371] He often contradicted his own evidence, prior witness statement or particulars of claim, including on critical issues such as when he first returned to Utopia or the nature of Constable’s conduct towards him.[372] He sometimes exhibited ‘unreasoning and unreasonable stubbornness’,[373] reacting with suspicion to cross-examination.[374] As was the case for some of Mrs Cubillo’s witnesses, some of his witnesses were ‘almost truculent’, ‘very bitter’ and ‘prone to exaggeration’.[375]
As noted, the Commonwealth was sole defendant to the actions. In an interlocutory judgment, O’Loughlin J ordered the deletion from the pleadings of claims that the Directors had unlawfully delegated their powers to the missions. He did so because the Ordinances[376] permitted the use of mission institutions for the placement of children.[377]
The applicants also claimed that the Commonwealth was vicariously liable for the actions of its Directors of Native Affairs and Welfare. They argued that there was ‘a chain of command flowing from the minister in Canberra through the Administrator of the Northern Territory to the Director ... which ... was part of a statutory scheme ... [under which] the Commonwealth controlled the administration of Aboriginal affairs in the Territory as part of its ordinary governmental functions’.[378]
O’Loughlin J accepted that the Director was an ‘officer of the Commonwealth’, and that he and the patrol and welfare officers were Commonwealth employees.[379] It was also true that both Ordinances placed the Director ‘under the Administrator’. However, there were other indications — in the statutory framework, the Directors’ duties and their status[380] — that the Directors alone were liable where they exercised independent discretion outside of the Minister’s control.[381] This was the case both where they took children into custody and committed them to ‘aboriginal institutions’, and where they exercised supervisory powers over the institutions.
In the case of the removal and detention decisions, s 6 of the 1918 Ordinance turned on the Director’s opinion about the child’s best interests. Under s 6, the Director could act contrary to the Administrator’s or Minister’s instructions. ‘[N]otwithstanding ... some policy, guideline or direction to the contrary, the Ordinance would not permit the director to remove and detain a child’ unless he had first formed the necessary opinion.[382] These duties were ‘imposed on the directors personally and by virtue of that office’;[383] he alone was liable for torts committed in their exercise.[384] There was also no evidence that either Director lacked independence in exercising these duties. Even the Hasluck principles left room for the Director to form his own opinion when exercising the s 6 power.[385] Vicarious liability might arise, however, if the Directors were involved in the removals without purporting to exercise their statutory powers.[386]
In the case of the Directors’ powers to supervise the institutions, there was also ‘no justification for a finding that the duties ... imposed on the directors ... were ... imposed on the Commonwealth’:
Section 8 of the Welfare Ordinance, for example, cast the duty on the director; it contained no provision that permitted interference by the Administrator, the minister or the Commonwealth. ... [T]hat the duties under s 8 ... were personal to the director [is] apparent from the language.[387]
O’Loughlin J’s interpretation of the Commonwealth–Directors relationship is consistent with judicial interpretation of the relationship between government and Aboriginal ‘welfare’ institutions in southern Australia, but these bodies were more likely to be statutory corporations than single officials, and at least one has a statutory successor.[388] If tort law’s chief concern is to distribute loss by allocating risk, rather than to punish or deter,[389] application of the ‘independent discretion’ rule in the Northern Territory Aboriginal ‘protection’ context will prove unsatisfactory, both from the point of view of affected Aboriginal people and in terms of general principle.
Between 1939 and the 1960s, only three men filled the position of Director.[390] Since all died more than one year ago,[391] suits against their estates are no longer possible, even under survival of actions legislation.[392] Further, as noted above, at least before 1950, the Director of Native Affairs’ capacity to do his job properly must have been severely constrained by Commonwealth parsimony.[393] This seems to support a broader argument that the ‘independent discretion’ rule has long been inappropriately applied to the circumstances of modern government, in which it is not meaningful to speak of ‘the Crown’ having ‘control’ analogous to that of a 19th century private employer over some public servants but not others.[394] Let us accept that the numbers of children removed under the race-specific legislation post-war were small — on the evidence, about 110 in the late-1940s and about 50 in the 1950s.[395] Most of these removals are probably legally unimpeachable. However (at least for cases where records have survived), it is arguable that unlawful removals are more likely to have occurred before 1950, when resources were limited. Application of the ‘independent discretion’ rule means that any ageing members of a relatively impecunious section of the Northern Territory population (former institutionalised children of Aboriginal descent removed before 1950) with legitimate claims against government must in theory satisfy them against the estate of one of two men who held office before the Commonwealth funded Aboriginal ‘protection’ properly — but in practice must bear their losses themselves.
The applicants contended that the missions were ‘integral to the implementation of’ Commonwealth policy, and that they ‘conducted their institutions at the request of the Commonwealth, using its funds, in accordance with its policy and under its supervision’.[396]
However, O’Loughlin J concluded that AIM, the Church of England, ABM, Miss Shankelton and the other missionaries were not Commonwealth agents. He did so primarily because, as a matter of fact, both Retta Dixon Home and St Mary’s hostel had an additional operation independent of the Directors — they received children placed by parents as well as those placed by the Directors. Further, as a matter of law as well as fact, they hired and fired their own staff or volunteers — there was no role for the Director in selection of institutional staff. This conclusion was buttressed by s 13(6) of the 1918 Ordinance, by which both kinds of children were placed under the control of the homes’ Superintendents. O’Loughlin J found that the Superintendents’ power over Native Affairs children stemmed from s 13(6) and did not depend on the Director making formal committal orders under s 16 of the 1918 Ordinance:[397]
There was therefore substantial independence reposed in the Superintendent ... [whose powers] ranged over all inhabitants of the institution ... That independence is not consistent with a Superintendent being a servant or agent of the Commonwealth in the performance of his or her duties of control and supervision.[398]
Finally, under the Ordinances, Superintendents lacked power to bring back absconding ‘aboriginals’ or ‘wards’ against their will — only the Director, not the Commonwealth, possessed that power.[399]
With respect, this reasoning is not completely persuasive. First, it omits to consider the possibility that the homes and their Superintendents were agents of government[400] in relation to Native Affairs children, even if not in relation to other children. Secondly, an agency relationship can be established even where a principal does not select the agent’s staff — such authorisations to act on one another’s behalf are commonly granted by law firms to others interstate. Thirdly, as noted above, there was no parallel provision to s 13(6) in the Welfare Ordinance. In the absence of such a provision, there was nothing in the Welfare Ordinance to keep Mr Gunner in St Mary’s after 1957 if he had not been properly declared a ward or if his mother’s ‘consent’ was not effective to keep him there. Arguably, this meant that, although approved ‘institutions’ under the Welfare Ordinance could also be boarding homes for Aboriginal children placed by their parents, to the extent that they were Welfare Ordinance homes they acted on behalf of government in controlling and maintaining children placed there under that Ordinance, whether as wards or under s 8(f). Finally, the fact that Superintendents lacked power over children who escaped from institutional care does not seem to rule out the possibility that they acted on behalf of government in relation to officially placed children while they were in institutional care.
The applicants alleged that the Commonwealth ‘promoted or caused their detention’[401] with its policy of removing children without regard to their individual circumstances.[402] However, as noted, O’Loughlin J found that no such policy existed; nor did the Commonwealth promote or cause Lorna Nelson’s or Peter Gunner’s imprisonment.[403]
For this cause of action, the loss of evidence may have favoured the applicants. It was sufficient for them to show imprisonment; the Commonwealth then carried the burden of proving that the imprisonment was lawful.[404] O’Loughlin J held that the breadth of the Director’s incarceration powers under s 16 of the 1918 Ordinance, and the proof of their exercise by ‘committal orders’[405] made against Lorna Nelson in 1953 and Peter Gunner in 1956, meant that those detention decisions could not be impeached.[406]
However, the Commonwealth had not proven that the Director’s removal of Lorna Nelson was an exercise of his powers under s 6 of the 1918 Ordinance. As a result,
Mrs Cubillo has established, prima facie, ... a cause of action against the estate of [former Director of Native Affairs] Mr Moy, [former Native Affairs patrol officer] Mr Penhall, the estate of [former Retta Dixon Home Superintendent] Miss Shankelton and the Aborigines Inland Mission for false imprisonment based on her removal.[407]
However, this did not amount to a cause of action against the Commonwealth.[408]
What about Lorna Nelson’s detention between 1947 and 1953?[409] O’Loughlin J inferred that the Director was involved in detaining her from the time of her arrival. Again, however, the Commonwealth had not shown that the Director acted pursuant to his s 16 powers. And, although she was placed in Miss Shankelton’s control by s 13(6), the Commonwealth had not shown that the Director played no further part in her ongoing detention.[410]
Although the Director’s s 6 powers were not involved in Peter Gunner’s removal, the Director immediately exercised his s 16 powers to commit Peter to St Mary’s until 13 May 1957, when, as noted above, he apparently failed to formalise his ongoing detention under s 17 of the Welfare Ordinance.[411] The judge said nothing further on this issue. However, if the lawfulness of that detention cannot be attributed to an exercise of the Director’s s 17 power, any defendant responsible for Mr Gunner’s detention from 1957 (for example, the Anglican Church, ABM or the estate of former Director Giese) will need to find an alternative basis for the lawfulness of that detention.[412] As indicated above, it is not so clear that Peter’s mother’s surrender of his custody under the 1953 Ordinance made his ongoing detention under the Welfare Ordinance lawful.
As noted, in a 1999 interlocutory decision (Cubillo [No 1][413]), O’Loughlin J declined to grant the Commonwealth summary judgment. The Commonwealth had argued, inter alia, that the applicants’ claims for breach of statutory duty could not be sustained.[414] However, in Cubillo [No 1] O’Loughlin J distinguished other unsuccessful ‘welfare’ litigation[415] by reference to the applicants’ argument that the Commonwealth had abused or misused its statutory powers by implementing an unlawful (because it was indiscriminate) policy of removal and detention.[416] In the interlocutory decision, his Honour stated:
I have come to the conclusion that the circumstances of both these cases are such that it would be appropriate to make a prima facie finding that Mrs Cubillo and Mr Gunner have private rights of action for breach of statutory duty available to them. I am persuaded to reach that preliminary conclusion as a result of the following factors: on the assumption that the applicants are able to prove an abuse or misuse of power on the part of the Commonwealth (or on the part of its servants or agents for whom it is vicariously responsible) the legislation provides no other remedy; the powers of the Director and (in the case of Mr Gunner) the powers of the Director of Native Affairs are exceptionally wide and far-reaching in their affect [sic] upon the liberty and freedom of the individual — a feature that, in isolation, calls out for some form of review or supervision. ... Next, the class of people who were affected by the legislation were [sic] clearly defined. It was limited in its application to Aboriginal persons and, later, with the advent of the Welfare Ordinance, to those persons who had been declared wards. Finally, it could not be said that one can describe, from a reading of either the 1918 Ordinance or the Welfare Ordinance, a clear intention on the part of Parliament to take away a private right to seek redress from the courts.[417]
O’Loughlin J resiled from this approach at trial,[418] but this may have resulted partly from the way in which the case was argued. The applicants appear to have confined their claims for breach of statutory duty to the Directors’ guardianship powers.[419] Perhaps they did this in an attempt to overcome the weight of authority indicating that, in the absence of private enforcement mechanisms, welfare statutes are to be treated as intended for the benefit of the public at large and are not to be construed as conferring private rights on the particular class affected by them.[420] They did not argue that the Directors breached their ‘public’ duties to supervise and regulate the institutions, and they withdrew allegations that the Directors breached other ‘public’ statutory duties — for example, to care for ‘aboriginals’ generally. However, unlike other ‘welfare’ statutes,[421] ‘neither Ordinance (as distinct from the common law) specified any duties that the Directors were to perform in their role of legal guardians’.[422] For O’Loughlin J, this disposed of the statutory duty claims.[423] Further, the applicants had failed to satisfy him that statutory protection under the removal and detention provisions was not available to the Director for actions taken as their guardian.[424]
The present lack of agreement in the High Court on the bases for imposing a duty of care,[425] particularly on statutory bodies, may foster a cautious, incrementalist approach to the recognition of new duties of care by the lower courts. This approach is perhaps best typified by the approach of the Court of Appeal in Williams, which declined to consider the question (not raised by the evidence) whether a duty of care should be imposed on a state for the treatment of a child in an institution.[426] This question was decided against the plaintiff in Williams by Abadee J. O’Loughlin J’s judgment is more adventurous than that of Abadee J: as discussed below, his Honour was prepared to decide that the official care relationship, once established, gave rise to a duty of care.[427]
His Honour considered separately the questions of whether a duty of care was owed by the Commonwealth directly or (vicariously) for the conduct of the Directors.[428] O’Loughlin J refused to find that the Commonwealth owed the applicants a duty of care based on statutory powers and duties vested in and exercised by others.[429] His approach was based on that of McHugh J in Crimmins.[430] In that case, McHugh J posed six questions to determine whether a duty should be imposed on a statutory body:
On this approach, O’Loughlin J refused to find that the Commonwealth owed the applicants a duty of care because no act or omission by the Commonwealth resulted in injury to the applicants as it did not enjoy the power of removal or detention,[432] and, although the plaintiffs were vulnerable, it had not been established that the Commonwealth knew of the risk of harm. Most writings tendered showed that Ministers and senior public servants never professed awareness of a risk of harm to removed children.[433] O’Loughlin J did not really discuss whether the Commonwealth ought to have known of the risk, although even McHugh J in Crimmins cautioned about using constructive knowledge in this area.[434] As noted above,[435] however, O’Loughlin J found that knowledge about the negative impact of removal of children from their families was available in the 1940s.
In the context of the Ordinances, the Commonwealth’s ‘capacity to intervene was essentially limited to legislative change, withdrawal of funding and to the formulation of general policies’.[436] O’Loughlin J held, applying the ‘policy–operational’ distinction,[437] that no duty of care should be imposed on such a role. Courts will not impose duties of care on decisions ‘which involve or are dictated by financial, economic, social or political factors or constraints’.[438]
Yet cases about removal of children highlight a flaw in one rationale for the ‘hands-off’ approach of the courts to ‘policy’ decisions: the argument that governments are answerable to the electorate.[439] Children in general — and especially Northern Territory children like Lorna Nelson in the 1940s, their ‘aboriginal native’ parents[440] and some Aboriginal children in Western Australia and Queensland before the 1960s[441] — are unable to hold accountable those who remove and institutionalise them because they cannot vote.
As to whether the Directors owed the applicants a duty of care, for this purpose, O’Loughlin J divided the applicants’ experiences into ‘four phases’ (although, as elsewhere in the judgment, the first