Clarke, Jennifer --- "Cubillo v Commonwealth'" [2001] MelbULawRw 7; (2001) 25(1) Melbourne University Law Review 218

CASE NOTES

Cubillo v Commonwealth[*]

INTRODUCTION

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]

II THE LITIGATION

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]

III THE REMOVALS AND DETENTIONS, AND THE STATUTORY AND POLICY FRAMEWORKS WHICH AUTHORISED THEM

A The Removals and Detentions

1 Lorna Cubillo (nee Nelson)

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]

2 Peter Gunner

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]

B Statutory Frameworks and the Legal Bases for the Removal and

Detention Decisions

1 Aboriginals Ordinance 1918 (NT)

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]

2 1953 Amendments to the 1918 Ordinance

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:

• where it was in the person’s best interests and the person requested to be deemed an ‘aboriginal’ (s 3A(1)(b)); or
• where the Director considered that the person ‘needs the care and control of this Ordinance’ and the Administrator (having heard the person) consented to the person being deemed an ‘aboriginal’ (s 3A(2)).

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.

3 Welfare Ordinance 1953 (NT)

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]

C Commonwealth Policy

1 The Applicants’ Allegations

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]

1. destruction of the child’s association with his or her mother, family and culture;
2. assimilation of ‘part-Aboriginal’ children into non-Aboriginal society;
3. provision of domestic and manual labour for Europeans; and
4. a desire to ‘breed out “half-caste” Aboriginal people and protect the primacy of the Anglo-Saxon community’.

Commonwealth Policy and These Removals

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]

Past Policy and Community Standards

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:

• the ‘stigma of illegitimacy’ of children;[194]
• the appropriateness of special qualifications for childcare workers;[195]
• the need for special educational methods for Aboriginal children;[196]
• the acceptability of corporal punishment of children;[197] and even
• the desirability of assimilation itself (as opposed to ‘the retention of Aboriginal tradition and lore’).[198]

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]

4 How Many ‘Half-Caste’ Children Were There? How Many Were Removed?

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.

5 Pre-War Commonwealth Policy

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]

Post-War Commonwealth Policy

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]

7 The ‘Hasluck Principles’ and the ‘Milliken Tests’

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]

8 Application of Policy to Cubillo and Gunner

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]

IV LIFE IN THE HOMES

A Mrs Cubillo and Retta Dixon Home

1 Home Conditions

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]

2 Assault by Mr Des Walter

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]

B Mr Gunner and St Mary’s Hostel

1 Home Conditions

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]

2 Sexual Assault by Mr Kevin Constable

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]

V THE APPLICANTS’ POST-INSTITUTIONAL LIVES

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]

VI EVIDENTIARY PROBLEMS FOR THE APPLICANTS

A The Force of Documentary History

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]

B Unreliability of, and ‘Reconstruction’ by, the Applicants

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]

VII THE COMMONWEALTH, THE DIRECTOR AND THE MISSIONS

A Commonwealth Vicarious Liability for Actions of the Director

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.

Commonwealth Liability for Actions of the Missions

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.

VIII CAUSES OF ACTION

A False Imprisonment

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.

B Breach of Statutory Duty

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]

C Negligence

1 Was a Duty of Care Owed by the Commonwealth (or by the Directors)?

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:

1. Was it reasonably foreseeable that the defendant’s act or omission (including failure to exercise a statutory power) would result in injury to the plaintiff?
2. By reason of the defendant’s statutory or assumed obligations or control, did it have power to protect a specific class, including the plaintiff, rather than the public at large?
3. Was the plaintiff vulnerable — unable to safeguard him or herself from harm?
4. Did the defendant know, or ought it to have known, of the risk of harm to the plaintiff’s class?
5. Would such a duty impose liability with respect to ‘core policy-making’ or ‘quasi-legislative’ functions?
6. Are there other supervening reasons to deny the existence of a duty of care (for example, its inconsistency with the statutory regime)?[431]

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 two are difficult to distinguish from one another.[442]) These phases were:

1. the applicants’ removal;
2. their detention;
3. general conditions in the homes; and
4. the assaults by Walter and Constable.[443]

Lorna Nelson and Peter Gunner were at all times ‘under the total control of the Director’[444] and, therefore, vulnerable to the exercise of the Director’s powers. The legislation generally was compatible with a duty of care; there was nothing in it to exclude such a duty.[445] However, his Honour regarded the Directors’ decisions to remove children ‘in their interests’ (and, apparently, their decisions to detain the children in institutions) as protected from common law liability: ‘to impose a liability on either the Directors or the Commonwealth out of a use of the directors’ discretionary powers under s 6 of the 1918 Ordinance would, arguably challenge the “core policy-making” function of the legislation’.[446] In this respect, O’Loughlin J applied X (Minors).[447] Decisions to take a child into ‘care, custody or control’ were ‘policy’ decisions[448] which the courts would not evaluate. ‘[C]onduct within the delicate sphere of child protection legislation [that is, taking a child into care] will not be actionable unless it exceeds the ambit of the discretion conferred by that statute’.[449]

The ‘policy–operational’ distinction has been criticised as difficult and unhelpful,[450] but O’Loughlin J’s approach really turns on the more detailed ‘counter-considerations’ developed by Lord Browne-Wilkinson in X (Minors).[451] The ‘core policy-making’ functions referred to by McHugh J in Crimmins were the authority’s powers to make ‘quasi-legislative’ orders, not its powers to control and regulate the wharves by administrative action.[452] However, McHugh J’s approach explicitly accommodated as ‘supervening policy considerations’ for denying a duty of care the types of considerations identified by Lord Browne-Wilkinson.[453] O’Loughlin J treated three of these as crucial:

The first of [Lord Browne-Wilkinson’s] counter-considerations was the question of a legislative scheme. Although the legislative scheme in the Aboriginals Ordinance did not call for the involvement of other participating bodies, nevertheless, s 6 ... placed an inordinately heavy responsibility on the shoulders of the director. In the cases of neglect, destitution and, worse, risk of bodily harm and even death, the director had to be free to act quickly and, perhaps, spontaneously. In such a climate, there were bound to be mistakes from time to time. But they would be mistakes that were made with the interests of the child in the forefront of the director’s consideration. The second consideration also applied here: to remove a child from his or her mother would always be ‘an extraordinarily delicate [decision]’. Some of the writings that I have identified show the interest and concern that some patrol officers took when they were required to consider the welfare of the child. The third consideration would have applied to the Director of Native Affairs; the risk of litigation would have had the potential to have the director and the branch’s officers ‘adopt a more cautious and defensive approach’ ... [T]he existence of the first two considerations remains sufficient in my opinion to reject the submission that either the director or the Commonwealth owed a common law duty of care to either applicant. A decision to take a child into care is one that courts are not fitted to assess.[454]

O’Loughlin J was not, however, prepared to take such a ‘hands-off’ approach to the treatment of Lorna Nelson and Peter Gunner once they had been taken into care. His Honour treated Barrett v Enfield London Borough Council[455] as indicating that a duty of care might be imposed on a care relationship arising out of the exercise of a statutory power.[456] ‘[W]hen Lorna and Peter became children ... in the care of the director, [he] had thereby assumed positively the responsibility for their safety and their wellbeing ... I see no problem with proximity[457] or with foreseeability.’[458] Although an analogy with the parent–child relationship would suggest that a duty of care should not be imposed, the law will sometimes intervene in the parent–child relationship, imposing criminal sanctions for physical or sexual abuse or welfare consequences for neglect.[459] Thus duties to guard against such consequences might be imposed on a person such as the Director.

I have argued that Mr Gunner was properly in the Director’s control under statutory powers from 1956 to 1957, but that it is possible that the Director purported to exercise over him statutory powers which the Director did not have from 1957. O’Loughlin J said that his conclusion that the Director owed Mr Gunner a duty of care relating to his treatment in an institution was based on the assumption that the Director removed him from Utopia against his mother’s wishes.[460] But if Peter was vulnerable after 1957 because the Director assumed control over him in a manner which reflected neither the terms of his mother’s original consent nor the Director’s statutory powers, there seems to be no reason for not treating that relationship as giving rise to a duty of care.

2 Standard of Care and Breach

As noted, O’Loughlin J, following Kruger,[461] specifically sought to consider issues of reasonableness and foreseeability by reference to the standards of the time.

O’Loughlin J held that, even if the Directors’ removal power did give rise to a duty of care, the evidence did not support allegations of negligent exercise of that power.[462] For example, there was no evidence of parents’ wishes to support the allegation that Directors had failed to have regard to family relationships.[463]

As noted above, O’Loughlin treated the Directors’ powers under s 5 of the 1918 Ordinance and s 8 of the Welfare Ordinance as allowing them to regulate and inspect the homes but not to be involved in their day-to-day management. Applying Crimmins, O’Loughlin J held that any duty imposed on the Directors in relation to the children’s treatment in the homes would be to do what ‘a reasonable authority with the same powers and resources’ would have done in the circumstances.[464] Thus the Directors were under a duty to protect children against foreseeable risk of assault[465] or against harmful conditions, including, if necessary, by removing them from the homes.

However, the duty did not necessarily require the Directors to provide something better than institutional care. Although standards of the time emphasised the importance of parental affection and the ‘adverse psychological impact of anonymous institutionalisation’,[466] this did not mean ‘that all institutions were inappropriate or that all ... inmates ... suffered reactionary illness or injury as a result’.[467]

Current ... standards strongly favour home care or, at least, cottage-style living ... [over] ... institutions. But ... those standards cannot always be achieved. Much would depend on the circumstances of the day — some tragedy may occur — adequate funds may not be available — there may be insufficient carers. These, and other relevant factors, would have to be considered before a party could be held legally responsible for such adverse consequences as might flow from the institutionalisation of a child in the 1940s and the 1950s. The most that can be said is that in that period it was well-known to the Commonwealth that institutional care was not the preferred option. However, I could not go further and hold that there were other preferred options available for the care of those part-Aboriginal children who were living separate and apart from their families.[468]

O’Loughlin J was satisfied that the Director had failed to meet the standard of reasonableness in relation to children placed in St Mary’s because of its poor physical conditions. It was foreseeable that children would be affected by these conditions — the Director was well aware of them:

[I]nspections were carried out, reports were made, concerns were expressed to responsible persons at St Mary’s, to [ABM] and to the bishop, but the results were inadequate and unsatisfactory. The director failed in the performance of his duty. ... [H]aving regard to the recent conclusion of the war, the shortage of building materials and ... funds, I do not feel that the conditions at ... Retta Dixon ... amounted to a breach of any duty that the director might have had to Lorna Nelson.[469]

...

What good would be achieved in giving the Director ... a power to ‘supervise and regulate’ St Mary’s, if he could stand back and allow those intolerable conditions to exist[?] He had the power to remove the children: he should have done so. ... [T]he view that I have formed translates into a duty of care for the welfare of those children. It was not a duty that would be readily breached. Regard would always be had to the public role of the director and the charitable objects of the institution.[470] But there would come a time when the most detached and objective observer would cry ‘Enough’. Retta Dixon did not descend to that level — St Mary’s did.[471]

O’Loughlin J did not address in any detail the question of the standard of care required of the Director in relation to the assaults. There was no complaint that the children should not have been placed in the institutions because of the two men (who arrived after them), or that the Commonwealth should have removed them because of the men’s presence.[472] There was no evidence that the Directors knew of the particular assaults — the applicants said they had told no one in authority about them. His Honour also found that there was no evidence that the Directors knew or should have known of the assailants’ propensities to commit the assaults.[473] This last finding was a strained one in relation to the assault on Lorna Nelson — there was contemporaneous documentary evidence from the Native Affairs file expressing concern about Mr Walter being a ‘basher’.[474]

The question of the foreseeability of the assault on Mr Gunner is more complex. The risk that a male volunteer working mainly alone with boys, including in a dormitory environment, may commit sexual assaults on them may appear far from ‘fanciful’[475] now. However, was it foreseeable in the 1950s? Even if it is appropriate to attribute to the Directors constructive knowledge of such risks,[476] community and professional concern about sexual abuse of children in institutional care does not appear to have been high at this time.[477] Of course, the extent to which a risk was foreseeable might also depend on the propensities of the particular male carer to assault children, but there was nothing in the evidence before O’Loughlin J to suggest to the Directors that, during Mr Gunner’s time at St Mary’s, Mr Constable’s presence presented a particular risk.[478]

There would have been a number of options open to a reasonable Director aware of the assaults. As O’Loughlin J indicated, he could always have removed the children. There is some evidence that the Directors were prepared to go further. There was evidence before O’Loughlin J that the permit of another ‘basher’ to remain on Bagot Reserve, and therefore on the Retta Dixon staff, had been revoked.[479] There is other evidence that, in 1956, Director Giese brought a civil assault suit against white pastoralists who stock-whipped their former Aboriginal employees.[480]

3 Causation and Remoteness of Damage

His Honour attributed most of the psychological harm done to the applicants to their removals (for which the Directors could not be held negligent), not to their detentions. Cubillo and Gunner suffered trauma and shock when removed, and throughout their institutional lives.[481] Each suffered a psychiatric injury as a result,[482] although O’Loughlin J noted that Mr Gunner could have suffered such an injury if removed with his mother’s consent.[483]

However, his Honour did not believe that the applicants suffered loss due to conditions in the homes (other than the assaults, for which the Directors could not have been held responsible):

[I]t was the removal and the detention — more than the conditions ... — that were the cause of their sufferings. Putting to one side the conduct of Mr Walter, ... I do not think that overcrowding or unsatisfactory ... hygiene caused or contributed to [Mrs Cubillo’s] sense of loss. That loss came from the severing of her ties with her family and the loss of her language, culture and her relationship with the land. And, save for the conduct of Mr Constable, I ... make the same comment about Mr Gunner. The conditions at St Mary’s ... were bad ... However, ... the legal issue is to determine ... how, or to what extent, those dreadful conditions contributed to his loss. ... I do not think they did. There was no evidence that pointed to Peter suffering ill-health because of the unsanitary conditions ... There was ... evidence of children rummaging through rubbish bins for food. However, was that because St Mary’s was ... failing to feed the children properly or was it ... young children [entertaining] themselves? ... [T]he evidence was not sufficiently detailed to justify a finding one way or the other.[484]

Mrs Cubillo’s loneliness and despair came from her detention — not from the inadequacies ... at Retta Dixon. ... I am sure ... [she] felt a lack of love and affection but I am not sure that she was justified.[485]

This last assessment of Mrs Cubillo relies heavily on the fact that her evidence of her Retta Dixon experiences was out of step with that of many other former inmates who gave evidence for the Commonwealth.[486] But, had a former Director breached his duty of care owed to Lorna Nelson to supervise Retta Dixon adequately, her hypersensitivity to its conditions would seem to be a loss which the former Director would have to accept.[487]

Further, in O’Loughlin J’s view, Mrs Cubillo’s ‘very hard’ life after Retta Dixon was not something for which the Commonwealth could be held responsible.[488]

Finally, O’Loughlin J took a broad approach to the applicants’ cultural losses, treating them as including loss of rights under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).[489] (The judgment does not suggest that his Honour was asked to consider any similar loss of native title rights.) Both Mrs Cubillo and Mr Gunner had suffered ‘compensable losses through not being regarded by other members of the Aboriginal community as traditional owners of the lands’.[490]

4 Damages

In case he was overruled on negligence, O’Loughlin J assessed general damages to which each applicant might be entitled.[491] He found no evidence of Commonwealth mala fides, reckless indifference or ‘contumelious disregard’ of the applicants’ interests justifying common law exemplary or aggravated damages.[492]

Damages would flow from the trauma of the children’s forcible removal and initial detention.[493] O’Loughlin J accepted that they would not recover from psychiatric injuries suffered then,[494] but took account of their failure to obtain treatment for these.[495] Their injuries were sufficiently similar as to warrant similar damages, taking into account their different ages.[496] Damages should take account of their isolation from families, their longing for home, their treatment in the institutions (including the assaults, from which Mrs Cubillo possibly suffered more than Mr Gunner[497]) and, interestingly in the current political climate, the Commonwealth’s ‘failure to acknowledge its wrongdoing and apologise’.[498] However, general institutional conditions did ‘not play a great part in the calculation of their losses’.[499]

O’Loughlin J made no deduction for ‘benefits’ — for example, language, education, or access to the European workforce — acquired by the applicants due to their removal,[500] and appeared to take no account of background changes in non-removed Aborigines’ lives during the same period.[501]

Finally, there were damages for ‘loss of cultural heritage’ during the applicants’ early lives and ‘loss of entitlements to be consulted as a traditional owner’.[502] His Honour accepted that ‘the cultural loss that a part Aboriginal person has suffered’ sounds in damages.[503] Lorna Nelson’s ‘culture shock’ from removal was likely to be less than Peter Gunner’s because she was already attending school and sleeping in a dormitory at Phillip Creek.[504] Cultural losses began to diminish when the applicants were able to find their way home — in his case, in 1969, and, in hers, after the last of her children had grown up.[505] Neither applicant could mitigate the losses suffered when removed and detained (including the assaults by Walter and Constable), but each was under a duty to take all reasonable steps to mitigate damages suffered later, particularly in relation to cultural losses.[506]

Mrs Cubillo in particular had failed to mitigate her cultural losses.[507] The applicants’ losses through not being regarded as traditional owners

are not total; they are reversible. That has already begun to appear in the case of Mr Gunner. ... Any award would ... be very modest, particularly in the case of Mrs Cubillo. She has made no attempt to change her lifestyle.[508]

Mrs Cubillo has never asserted her rights. ... If [she] has rights as a traditional owner ... it is up to her to assert them and ... to establish that they have been rejected and the reasons for the rejection.[509]

There are two possible problems with this analysis. First, it suggests a strong voluntary element in Aboriginal cultural participation which may not be present at the level of small traditional communities. People might try to get their names on land council registers,[510] or even succeed in being so listed, but that does not mean that the ‘real’ traditional owners have to treat them as such — whether or not they do, or whether or not they have to, depends on political factors. Secondly, the expression ‘traditional Aboriginal owner’ is not at large — it is defined in the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth).[511] O’Loughlin J’s analysis may underestimate the extent to which ‘former removed children’ people have, at least in the past, been ‘put off’ land rights by the way in which Land Commissioners[512] or land councils[513] have interpreted the statutory definition. Not all Commissioners have interpreted it sympathetically to children of white fathers removed from their country as children.[514] The fact that the Act allows payment to ‘traditional Aboriginal owners’ of rents for use of Aboriginal land[515] may generate Aboriginal pressure on land councils to limit the number of its ‘traditional Aboriginal owners’ to the exclusion of former removed children.

O’Loughlin J found that Mr Gunner had attempted to mitigate his loss by returning to Utopia,[516] ‘but even he could have done more if it had been his wish’:

He knew in 1969 where to find his mother, his community and his home but he did not go back until 1991 ... He complained that he is not an initiated man but the evidence has established ... that he could undergo the initiation ceremonies if he wanted to.[517]

Similar comment might be made about this analysis: the fact that Mr Gunner had not ‘done more’ to mitigate cultural losses may have been a response to the political realities of small Aboriginal communities, in which identity politics can be a feature of daily life.

O’Loughlin J would have awarded Mrs Cubillo $110 000 and Mr Gunner $125 000. Given the long delay in commencement of proceedings, pre-trial interest was not awarded. Mrs Cubillo would have been awarded $16 800 interest from the date of issue of her writ; Mr Gunner, $19 100.[518] These figures might seem unusually low by comparison with other damages payments — for example, the recent case of a Sydney man who was awarded $2.5 million by a jury for receiving the strap eight times at school[519] — but O’Loughlin J regarded comparisons with cases other than Williams as unhelpful.[520]

D Fiduciary Obligations

As noted above, O’Loughlin J played down the significance of the Directors’ statutory guardianship of ‘aboriginals’ and ‘wards’. However, his Honour rejected the applicants’ claims — that the Commonwealth and the Director owed them fiduciary duties, which were breached by their removal and detention — for more fundamental reasons.

A fiduciary relationship between the Commonwealth and the applicants was alleged to arise because of ‘the vast power of the Commonwealth ... over Aboriginal people’, exercisable ‘unilaterally’ and unequally.[521] The Commonwealth was said to owe duties to have regard to and to act in the applicants’ best interests, to avoid conflict between its interests and theirs, not to make improper use of its position to gain advantage for people other than them or cause detriment to them, to approve and supervise proper institutions under the Ordinances, to advise the applicants of their rights on leaving the institutions and to assist them to obtain independent legal advice.[522] Similar duties were said to be owed by the Directors.[523]

O’Loughlin J noted that whether or not fiduciary relationships arise in a statutory context will depend on the facts.[524] The Commonwealth argued that such relationships could not arise without an undertaking or agreement by a fiduciary to act in another’s interests.[525] O’Loughlin J did not deal with this submission. Rather, his Honour applied the comments of the Full Federal Court regarding an attempt to enforce fiduciary duties in the guardianship context (Paramasivam v Flynn[526]):

In Anglo-Australian law, the interests which [these] equitable doctrines ... have hitherto protected are economic interests ... Here, the conduct complained of is within the purview of the law of tort, which has worked out and elaborated principles according to which various kinds of loss and damage, resulting from intentional or negligent wrongful conduct, is to be compensated. That is not a field on which there is any obvious need for equity to enter.[527]

The High Court had distanced itself from Canadian cases extending fiduciary principles into this territory.[528] The applicants claimed ‘damages flowing from ... psychiatric injuries and cultural losses’, not damage to economic interests. The same factual material used to ground their tort claims was used to argue for the fiduciary relationship and to suggest breaches.[529] O’Loughlin J regarded it as ‘inappropriate’ for him, as a trial judge, to expand the range of fiduciary relationships to include those in which conflicts might arise over non-economic interests.[530]

O’Loughlin J distinguished this case from Bennett v Minister for Community Welfare,[531] in which a statutory guardianship provision[532] was relied on to found a breach of fiduciary duty claim. Bennett, who was injured while a ward of the state in an institution, successfully sued the Director of Community Welfare for breach of a duty to obtain for him independent legal advice about the Director’s liability to him for the injury.[533] However, O’Loughlin J said the plaintiffs’ argument based on Bennett ‘must fall by the wayside because of my factual findings that the applicants have failed to prove that any of their rights were infringed’.[534] The position may have been different, however, if Peter Gunner was detained for five years without lawful authority and in a manner that exceeded the terms of his mother’s original consent.[535]

IX LIMITATIONS

A ‘Missing’ Witnesses

As noted, there were more than 50 witnesses in Cubillo. O’Loughlin J named more than 100 other people — from responsible Ministers to Lorna’s basketball coach, farm staff and examining doctors at St Mary’s — who might have had something to do with the applicants’ lives. About 90 of these people were deceased at the time of trial.[536] One gave evidence on affidavit in 1998 but subsequently died. One (former Director of Native Affairs and Welfare, Harry Giese) was too ill to give evidence.[537] The whereabouts of another three was unknown.[538]

Some witnesses’ evidence was seriously clouded by the passage of time. Former patrol officer Mr Harry Kitching could not remember removing Gunner, although O’Loughlin J found he probably did.[539] There were serious discrepancies in the evidence of former Utopia ‘station missus’ at the time of Mr Gunner’s removal, Mrs Dora McLeod.[540]

O’Loughlin J rejected the applicants’ submissions that the Commonwealth should have made up for the absence of some witnesses by calling about 25 others when it was not shown what they would say, their conduct was unrelated to the case, they were unlikely to add to the documentary evidence, or the applicants could have called them.[541] A serious omission from the Commonwealth’s witness list was Mr Reginald Marsh (aged 93), former Assistant Secretary, Department of Territories, Acting Government Secretary, NT Administration and Assistant NT Administrator between 1953 and 1962. O’Loughlin J thought Mr Marsh’s seniority and positions ‘would have gone some way towards ameliorating the hardship that the Commonwealth said it has suffered as a result of the deaths of former Administrators’.[542] The evidence did not show that he was too sick or frail to attend court.[543] Indeed, while O’Loughlin J’s decision was reserved, Mr Marsh gave evidence before the Senate ‘Stolen Generations’ inquiry.[544]

Another person not called by the Commonwealth was Mrs Bessie Liddle, former Angas Downs station owner. Her evidence about Peter Gunner’s employment there would have been ‘of interest’, particularly as he had alleged that his detention continued there. However, it was open to Mr Gunner to call her.[545]

B Extension of Limitation Periods

As noted, O’Loughlin J declined to decide the limitations issue in the Commonwealth’s favour on interlocutory grounds in 1999.[546] One of the reasons why he did so was that

these cases are of such importance — not only to the individual applicants and to the larger Aboriginal community, but also to the Nation as a whole — that nothing short of a determination on the merits with respect to the competing issues of hardship [to the applicants in not being able to bring their case or to the Commonwealth in not being able to defend it] is warranted.[547]

1 When Did the Limitation Periods Expire?

Section 12 of the Limitation Act 1981 (NT) (which commenced on 26 February 1982), prescribes limitation periods for all torts of three years. Before its commencement, the Limitation of Suits and Actions Act 1866 (SA), in force at the time of Mrs Cubillo’s and Mr Gunner’s removals and throughout their detentions, applied a three-year limitation period for false imprisonment and a six-year limitation period for actions on the case, encompassing negligence and breach of statutory duty.[548] When did the relevant causes of action accrue and time begin to run?

O’Loughlin J acknowledged that a psychiatric or psychological illness might not necessarily arise at the same time as the act(s) causing it. However, that did not accord with the expert evidence, which forced Mrs Cubillo’s counsel to concede that her psychological injuries first occurred (and therefore her causes of action in negligence and breach of statutory duty relating to them accrued) when she was separated from her family.[549] Mr Gunner’s case was the same: two psychologists agreed he suffered psychological injury when removed and detained.[550]

This meant that the limitation periods applicable to Mrs Cubillo’s and Mr Gunner’s causes of action in negligence and breach of statutory duty expired either three or six years after their majority (depending on whether the Limitation Act 1981 (NT) or its predecessor legislation was applied). Section 36 of the Limitation Act 1981 (NT) provided that time did not run against a plaintiff while under a disability, however there was no contest that the applicants’ infancy was such a disability.[551] In Mrs Cubillo’s case, she turned 21 in 1959, so that these limitation periods expired in either 1962 or, at the latest, 1965. The relevant periods in Mr Gunner’s case, he having turned 21 in 1969, expired in 1972 or, at the latest, 1975.[552] The limitation periods for their causes of action in false imprisonment also expired three years after their majority.[553]

Defining the point at which cultural loss occurred was more difficult. The expert evidence was that prolonged exposure to culture and language was required to maintain both,[554] that ‘people really demand that relationships are continually affirmed and long, long absences are not easily forgiven’.[555] Mrs Cubillo — who was unable to communicate with her family in 1954 — had suffered cultural loss by the time she left Retta Dixon; her causes of action relating to it also accrued before her majority but were postponed by it.[556] Mr Gunner was detained throughout his adolescence, when he would have been initiated had he remained at Utopia, so ‘a substantial amount’ of the damage was done to him before his 21st birthday also.[557]

O’Loughlin J accepted Mrs Cubillo’s submission that her loss of entitlements under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) occurred when the first grant relating to land in which she could have had traditional ownership was made under that Act, in 1981,[558] so that the limitation period for her causes of action relating to loss of land rights expired in 1984.[559] In Mr Gunner’s case, the relevant dates were 1979 and 1982.[560]

2 Application to Extend Time

Section 44 of the Limitation Act 1981 (NT) provides:

(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for —

(a) instituting an action;

(b) doing an act, or taking a step in an action; or

(c) doing an act or taking a step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit.

(2) A court may exercise the powers conferred by this section in respect of an action that it —

(a) has jurisdiction to entertain; or

(b) would, if the action were not out of time, have jurisdiction to entertain.

(3) This section does not —

(a) apply to criminal proceedings; or

(b) empower a court to extend a limitation period prescribed by this Act unless it is satisfied that —

(i) facts material to the plaintiff’s case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or

(ii) the plaintiff’s failure to institute the action within the limitation period resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances,

and that in all the circumstances of the case, it is just to grant the extension of time.[561]

Conditions (i) or (ii) must be met before the court has a discretion to extend time. But this does not mean the court must extend time. The justice of the extension must also be established.[562]

C Ascertainment of Material Facts after Time Had Expired

The applicants relied primarily on their late discovery of ‘psychiatric injuries’ and related conditions as ‘material facts’.[563] They claimed that they had ascertained these only when appraised of them by their solicitors (or their medical practitioners) in mid to late 1996.[564] (They commenced proceedings at the end of October 1996.[565]) With some reservations (see below), O’Loughlin J accepted this argument.[566] The applicants did not press their case for meeting s 44(3)(b)(ii).

O’Loughlin J accepted that Mr Gunner’s appraisal of his psychological condition in November 1996 amounted to the ascertainment of a material fact for the first time although his Honour had some ‘concern’ about the fact that his statement of claim, filed on 31 October, referred to his psychological injuries — a situation his counsel was unable to explain.[567] O’Loughlin J followed Ward v Walton[568] to the effect that the s 44(3)(b)(i)

requirement that an action be instituted within 12 months after the ascertainment of material facts by an applicant would be properly met by showing that the action was instituted at a time no later than 12 months after the ascertainment of those facts ... [I]f the proceedings were instituted ‘before the end of’ 12 months after the ascertainment of the relevant facts, there would be a compliance with the provision.[569]

[I]f, prior to the ascertainment of the facts, the applicant had already commenced proceedings, there would be no need ... to institute proceedings afresh.[570]

D Discretion to Extend Time

Nonetheless, O’Loughlin J declined to exercise his discretion to extend time under s 44 of the Limitation Act 1981 (NT).[571] He considered a number of factors important. These were the extent of, and explanation for, the delay, the prejudice to the applicant if the action were dismissed and to the respondent if allowed to proceed, the applicant’s and respondent’s conduct, the nature, importance and circumstances surrounding the discovery of new material facts, and the extent to which the evidence was likely to be less cogent than if the action had been brought within time.[572]

As to the applicants’ conduct, neither acknowledged a date when they decided to sue or explained why they failed to sue earlier.[573] Mrs Cubillo participated in research for a book on ‘the Stolen Generation’,[574] and attended a conference on the subject in Darwin in October 1994.[575] She instructed Katherine Regional Aboriginal Legal Aid Service to commence proceedings on her behalf that year. O’Loughlin J found she was ‘a willing participant in [that] decision’.[576]

As to prejudice to either party, in Brisbane South Regional Health Authority v Taylor[577] the High Court emphasised the importance of ensuring a fair trial. It was for the applicants to show that there was no significant prejudice to the respondent in seeking an extension of time.[578] The Commonwealth needed only prove that material witnesses were no longer available (showing actual prejudice); it needed not ‘prove’ what they would have said.[579] In order to determine the significance of the prejudice, it was necessary to consider what evidence those witnesses may have given and the availability of other evidence to ‘fill the gaps’.[580]

In Mrs Cubillo’s case, the Commonwealth argued that it would have been assisted by the evidence of Miss Shankelton and two former Retta Dixon staff members who cared for the girls in Lorna Nelson’s time.[581] O’Loughlin J agreed that Miss Shankelton’s death left ‘a huge gap’.[582] However, his Honour doubted that the Commonwealth would have needed to call former Ministers whose portfolios included the Northern Territory and Aboriginal Affairs, with the ‘notable exception’ of Sir Paul Hasluck because of his ‘very active interest in Aboriginal affairs’.[583] The Commonwealth’s ‘greatest difficulty’ was its loss of senior public servants who could have given evidence about policy and its implementation: the Directors and NT Administrators.[584] All but one who had held the office of Director during Mrs Cubillo’s detention were dead; Mr Giese was too ill to give evidence.[585] The evidence of Mr Moy, Director from 1946 to 1953, and Mr McCaffrey, Acting Director from 1949 to 1950 and from 1953 to 1954, would have been potentially valuable.[586]

In Mr Gunner’s case, Mr Giese could not give evidence about his removal. Age, frailty and the passage of time had confused Mr Kitching and Mrs McLeod, so as to have a potentially adverse effect on the Commonwealth in preparing its defence.[587]

The Commonwealth’s failure to call Mr Marsh[588] ‘makes one question the depth of their complaint’. However, ‘I am unable to see how Mr Marsh could have possibly made up for the absence of Mr Moy, Mr McCaffrey, Mr Giese and Miss Shankelton’.[589]

As a result, ‘[t]he strength of the Commonwealth’s claims’ of prejudice was ‘overwhelming’;[590] its defence must prevail, despite the applicants’ relatively recent access to the courts and knowledge of their legal rights, their hardship, the complexity of their actions, their need for assistance in presenting them, and the ‘test case’ nature of the proceedings.[591] The extent of prejudice to the Commonwealth was demonstrated by Mrs Cubillo’s false imprisonment action: it was for the Commonwealth to prove that the taking was lawful, but every person in authority involved was dead, and no writings could be located.[592] The Commonwealth was on firmer ground with Mr Gunner, but suffered prejudice due to the missing and confused witnesses. Because of the delay in instituting proceedings, for which the Commonwealth was not responsible, it was in both cases denied an opportunity of mounting a defence on the merits.[593]

E Laches

O’Loughlin J barred the plaintiffs’ claims for equitable relief on similar grounds.[594]

Section 21 of the Limitation Act 1981 (NT) provides that limitation periods do not apply ‘except so far as they may be applied by analogy’ to various causes of action for equitable relief.[595] Two important considerations in the application of the doctrine of laches were the length of the delay and the nature of acts done during the interval which affected the balance of justice between the parties. Traditional considerations of the equities of the case were important. The Court must decide whether the plaintiff’s delay constituted acquiescence or resulted in circumstances which made prosecution of the action unreasonable.[596]

The applicants argued that they had only recently become aware of their rights to sue and their psychiatric injuries, that their delay had not been unreasonable, that their failure to claim relief earlier was induced by Commonwealth action and due in part to the psychological effects of their removal and detention, that they had earlier lacked the financial means to prosecute their claims and that any prejudice to the Commonwealth did not prejudice a fair trial.[597]

O'Loughlin J accepted that their delay had not been `knowing' -- they had been ignorant of their rights and material facts.[598]

However, the evidence had not raised even a prima facie case that a Director had breached fiduciary obligations owed to them.[599] If breaches of such obliga- tions (in which the Commonwealth was implicated) could be established, `there would be no justice in denying relief to the applicants merely because the breaches occurred a long time ago'. [600] However, `it would be grossly unfair' to allow a case to proceed against the Commonwealth when it did not have the witnesses and other evidence necessary to mount a defence.[601]

X CONCLUSION

O'Loughlin J's task in Cubillo was an unenviable one, canvassing as it did events and legislation up to 53 years old, more often than not in the absence of guidance from those who were involved in shaping them and could explain their contemporary meaning.

However, the `importance ... to the Nation as a whole'[602] of a case like this lies not only in its treatment of particular plaintiffs or its application of principles of governmental liability. Cubillo's significance also lies in the story it tells wider Australia about this era of Australian history. It is important that such cases represent accurately the regulatory regimes in force during the `protection' and `welfare' eras, the social conditions under which Aborigines (including the mothers and other relatives of removed children) were drawn into them, and the extent to which law reforms aimed at treating `part-Aborigines' as `not-Aborigines' were undermined by continuing bureaucratic practices which found it difficult to treat them as anything else. I have argued that O'Loughlin J's judgment fails to do this in important respects. This failure has also led his Honour into error by making him blind to the differences between race-specific legislation and a parallel child welfare regime which, in a territory with a small white population, also impacted mainly on Aborigines.

Even if (on one view of the evidence, and on my analysis of the law) Peter Gunner was not black enough to come under the Welfare Ordinance, his reme- dies for false imprisonment may now be limited to suing the Anglican Church. Application of the `independent discretion' rule has left him without a remedy against the Commonwealth, and death and the lapse of time have left him unable to sue the `independent' official responsible for detaining him.

Both applicants may have actions in battery against the men who the judge found assaulted them in the homes, depending on whether the limitations `hardship' question is answered differently from in Cubillo because both Mr Walter and Mr Constable (and their spouses, who worked alongside them) are alive and able to give evidence in their defence.

However, limitations statutes may be decisive of most cases relating to Aboriginal child removal so long ago. Death or old age of witnesses are not the only obstacles to fair trials: Cubillo and Williams indicate that, at least in two jurisdictions, the documentary record is far from perfect.

Given the flexible way in which it takes account of `policy' considerations, and its deference to the perspective of a `reasonable authority' in similar circumstances, the law of negligence seems an inadequate vehicle for the prosecution of claims that children were `stolen' by government authorities. In particular, these principles allow governments to escape liability for chronic under-spending on Aboriginal `protection'. Principles of negligence may, however, provide some relief to children taken into care in substandard homes, if the courts accept (as O'Loughlin J has) that institutions are not, for `policy' reasons, the same as parents.

Finally, in Cubillo there were significant deficiencies in the applicants' evidence -- although they were not nearly so serious as the deficiencies in Williams. Recent public airing of the stories of removed children, including before the Human Rights and Equal Opportunity Commission inquiry, [603] has been an important educational and cathartic process, for those affected and for other Australians. But `telling our stories' in those contexts is very different from telling them before a court.

JENNIFER CLARKE**

[*] [2000] FCA 1084; (2000) 174 ALR 97 (‘Cubillo’).

[1] Earlier this year, the Minister representing the Minister for Aboriginal Affairs told Parliament that 736 plaintiffs had commenced similar cases against the Commonwealth: Commonwealth, Parliamentary Debates, House of Representatives, 26 February 2001, 24 438 (Philip Ruddock).

[2] I use this term (coined by Peter Read in relation to experiences in NSW: see Peter Read, The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969 (1982)) because it has acquired currency in public debate. However, I dislike that usage because of its tendency to blur a variety of historical circumstances in which children of Aboriginal descent were removed from their families. This is not to imply, however, that the families consented to such removals or that they were in a position to prevent them. I do not doubt that there were families in which many members of one or more generations were removed without consent.

[3] The first ‘Stolen Generations’ case was Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 (‘Kruger’). In Kruger, people removed from families as children under the Aboriginals Ordinance 1918 (NT) (‘the 1918 Ordinance’) between 1925 and 1949 (to be detained as late as 1960 under the Welfare Ordinance 1953 (NT) (‘the Welfare Ordinance’)) and a mother so deprived of her daughter challenged the constitutionality of the 1918 Ordinance on several grounds. These were: exceeding the Territories power contained in s 122 of the Constitution; allowing detention by an administrator contrary to the separation of judicial power mandated by ch III of the Constitution; breaching implied constitutional guarantees of equality, and of freedom of movement founded on representative government; breaching an implied constitutional prohibition against genocide; and breaching s 116 of the Constitution relating to the free exercise of religion under Commonwealth laws. No judge found the 1918 Ordinance beyond power under s 122. Dawson and McHugh JJ dismissed the constitutional limitations arguments on the grounds that the protection of s 116, ch III and representative government were not available to residents of Territories: at 60, 62 (Dawson J), 141–3 (McHugh J). (The Chief Justice agreed that s 122 was not subject to ch III (at 43–4), although the subsequent decisions in Northern Territory v GPAO (1998) 196 CLR 553, Spinks v Prentice (1999) 198 CLR 511 and Re Governor, Goulburn Correctional Centre, Goulburn; Ex parte Eastman (1999) 200 CLR 322 support a more ‘integrationist’ view.) All who considered the issue (Dawson J at 70, Toohey J at 88, Gaudron J at 107, McHugh J at 144, Gummow J at 158) treated the 1918 Ordinance as a ‘beneficial’ law, one authorising ‘non-punitive’ detention, not genocide. Only Gaudron J regarded a constitutional prohibition on genocide as arising: at 107. The decision confirmed that there is no implied constitutional guarantee of legal equality of citizens: at 44–5 (Brennan CJ), 63–8 (Dawson J), 112–14 (Gaudron J), 142 (McHugh J), 153–5 (Gummow J); cf 94–7 (Toohey J). Three judges (Brennan CJ, Dawson and McHugh JJ) continued to treat s 116 as preventing only those Commonwealth laws which on their face disclose the purpose of prohibiting the free exercise of religion; this was to be contrasted with the purpose of the 1918 Ordinance, which was seen as ‘protecting’ Aborigines: at 40 (Brennan CJ), 61 (Dawson J), 160 (Gummow J). Although not all judges found it necessary to decide the issue, Kruger confirmed that, even had a constitutional breach been established, the applicants were not entitled to damages as a result. Any damages claims relating to removals pursuant to unconstitutional ‘protection’ or ‘welfare’ laws or decisions would need to have been brought at common law: at 46–7 (Brennan CJ), 93 (Toohey J), 125–6 (Gaudron J), 146–8 (Gummow J).

[4] [1999] NSWSC 843; (1999) 25 Fam LR 86 (‘Williams [No 2] (Trial)’); [2000] Aust Torts Reports 81-578, 64,136 (‘Williams [No 2] (Appeal)’). The nature of Joy Williams’ case (brought by Kingsford Legal Centre) changed considerably in the course of the one-month trial (Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 101–2) and on appeal. The plaintiff did not give oral evidence, having been admitted to a psychiatric institution shortly before commencement of the trial: at 87. However, her counsel conceded at trial that she was not a member of ‘the stolen generation’ because the evidence showed that her mother had placed her in the care of the Aborigines Welfare Board under s 7(2) of the Aborigines Protection Act 1909 (NSW) shortly after her birth in 1942: at 91–2. In her affidavit, Ms Williams made a number of very serious allegations against the Board, including allegations of responsibility for abuse and mistreatment by the staff of two children’s homes in which the Board placed her: at 130–4. Abadee J found these allegations not proven on the evidence: at 176–9. Evidence from former home staff and residents contradicted Ms Williams’ views of institutional life and of her own personality as a child: at 143. At trial, Ms Williams’ counsel asked Abadee J to treat most of her allegations as evidence not of their ‘objective truth’ but of her disordered mental state (at 135–6), which state (borderline personality disorder) had been caused by the Board’s negligence, breach of statutory duty and breach of fiduciary obligations: see, eg, at 245–6, 266–7. Abadee J declined to consider her allegations in this light, preferring to regard them as going to her credibility: at 138–40. Thus, in his Honour’s view, ‘[t]he plaintiff's case really fails on my findings of fact and on the lay evidence’: at 176.

However, Abadee J also held against Ms Williams on the law. He treated the Aborigines Protection Act 1909 (NSW) as not having given rise to a private right to sue for breach of statutory duty: at 226–31. His Honour held that, even assuming that there was a fiduciary relationship between the Board and Ms Williams (which was not conclusively decided, although Abadee J was inclined to think there was no such relationship), there was no relevant fiduciary duty to protect her against injury of the kind complained of: at 231–43. Finally, unlike O’Loughlin J in Cubillo, his Honour held that, for ‘policy’ reasons, a duty of care should not be imposed on the relationship between an institutionalised child and the institution in which he or she is held. These ‘policy’ reasons included those referred to by O’Loughlin J to deny a duty in the child removal context: Williams [No 2] (Appeal) [1999] NSWSC 843; (1999) 25 Fam LR 86, 256; see also text accompanying below nn 436–8. But they also included the fact that no such duty was imposed on the parent–child relationship (a factor in relation to which O’Loughlin J took a different approach). Abadee J was at pains to point out that ‘my decision does not turn on’ this factor, ‘although it assists in reaching my decision’: at 260. Also relevant were ‘floodgates’ arguments and the argument that the common law should proceed to develop new categories of negligence incrementally and by analogy, there being no established categories of negligence providing analogies here: see generally at 245–60. Abadee J also held that there had been no breach of duty in Ms Williams’ case (at 264), and that the Board’s actions had not caused her loss: at 267.

Upholding Abadee J’s decision, the Court of Appeal commented that Ms Williams’ case suffered from ‘an insuperable causation problem’: although she claimed that, had the Board taken her to a Child Guidance Clinic before 1960, she would not have suffered a psychiatric disorder, she did go to such a clinic in 1960 and no such disorder was diagnosed then: Williams [No 2] (Appeal) [2000] Aust Torts Reports 81-578, 64,175 (Heydon JA, with whom Spigelman CJ and Sheller JA agreed). Since Abadee J’s factual findings disposed of Ms Williams’ case, the Court of Appeal was disinclined to consider whether the law of negligence should be developed so as to accommodate such cases: see below n 426 and accompanying text.

[5] For proposed policy solutions, see Human Rights and Equal Opportunity Commission (‘HREOC’), Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) 559–97, 651–65 (‘Bringing Them Home report’); Senate Legal and Constitutional References Committee, Healing: A Legacy of Generations (2000).

[6] The negative impact of the decision on at least one plaintiff (Peter Gunner) was palpable even in the ABC television broadcast of O’Loughlin J’s judgment, handed down in Darwin on 11 August 2000. This should be a matter of concern. The judge agreed with one of Mr Gunner’s psychiatric experts, who told the Court ‘he could not remember seeing a man who seemed “so beaten as Peter Gunner”’: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 556.

[7] As is now widely acknowledged, children removed were overwhelmingly people with white (or sometimes other non-Aboriginal) ancestors — in the racialised terminology of the time, ‘half-castes’, ‘quadroons’ or people of ‘lesser’ Aboriginal descent.

[8] Other developments also contributed to this result. See, eg, Lowitja O’Donoghue, Press Release (23 February 2001) [5]–[7], which sparked public debate on use of the term ‘stolen’:

For my own personal circumstances, in which my white father appears (as far as I know) to have relinquished his five children, I now prefer to use the term ‘removed’ ... I know that my Aboriginal mother would have had no legal recourse, nor any moral support, in resisting our removal ... I do not caution others against using the word ‘stolen’. For many it is the most accurate description of what happened.

[9] Eg, 1957 advice to the Minister for Territories in evidence before O’Loughlin J stated that 46 children had been removed (presumably under the 1918 Ordinance) between 1950 and 1957, but that 18 of these had been taken in 1950, so that an average of five per year were removed in the following six years. The advice claimed further that no child had been removed without the mother’s consent: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 192. Commonwealth statistics indicate that the number of part-Aboriginal children in schools increased steadily from 332 in 1949 to 815 in 1959, but that the number in institutions dropped from around 400 in 1952–57 to around 300 in 1961: at 183. However, these figures appear to take no account of children placed in foster care institutionalised outside the NT — eg, in St Francis’ House, Semaphore, SA (as was the case, eg, with the late Kumantjayi Perkins), or other children’s homes. As discussed in below n 231 and accompanying text, it appears many children were ‘sent south’ to such institutions or foster care for education.

[10] The race-specific legislation (the 1918 Ordinance and most provisions of the Welfare Ordinance as they operated before 1961) is discussed below. The general welfare legislation was the State Children Act 1895 (SA), the Children’s Protection Act 1899 (SA), the Child Welfare Ordinance 1958 (NT) and the Welfare Ordinance as it operated after 1961. See the text accompanying below nn 160–2.

[11] Barbara Cummings suggests that a large number of children in one of the homes considered by O’Loughlin J (including herself) were actually in this category — they were either the children of ‘single’ working mothers who themselves were institutionalised, or the children of former inmates who did not know how to raise children outside an institution and therefore put their children (and sometimes themselves) back into this familiar environment. At the Retta Dixon Home, these children were removed to a separate nursery once weaned: see Barbara Cummings, Take This Child ... From Kahlin Compound to the Retta Dixon Children’s Home (1990) 102, 104, 107. One of the mysteries of the Cubillo case is the fact that this book, although referred to, was not in evidence, and Ms Cummings, although sometimes present in court, was not called as a witness: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 243, 301.

[12] As discussed below, ‘protection’ legislation ceased to apply to most ‘half-castes’ in 1953, and ‘welfare’ legislation did not apply to these people unless they sought its protection. But, according to Cummings, the numbers of ‘part-Aboriginal’ children in the care of the State Children’s Council under the State Children Ordinance (NT) increased from 23 in 1955 to the majority of a total of 100 in 1957: Cummings, above n 11, 109, 113.

[13] In Kruger [1997] HCA 27; (1997) 190 CLR 1, 45, Brennan CJ accepted that the improper administration of Aboriginal ‘protection’ and ‘welfare’ laws might have rendered some Aboriginal child removal decisions unlawful, including where constitutional limitations were thereby infringed.

[14] Ibid. See discussion in above n 3.

[15] Cf HREOC, above n 5, 270–5 with the discussion of Kruger in above n 3.

[16] Andrew Bolt, ‘Stolen Generation Myth Sells Us All Short’, The Daily Telegraph (Sydney), 24 February 2001, 19. For a critique of Bolt’s ‘tub-thumping conservative views’, see Andrew Dodd, ‘Burnt by a Bolt Out for a Blue’, Media, The Australian (Sydney), 15–21 March 2001, 3.

[17] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 115.

[18] Historically, the courts have characterised ‘protection’ and ‘welfare’ laws as beneficial, even in the face of their discriminatory operation: see, eg, Coe v Gordon (1983) 1 NSWLR 419, which contested the validity of earlier revocations of Aboriginal reserves, and Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664, in which a famous central Australian artist was convicted of supplying alcohol to a relative who was not permitted to drink it.

[19] These regimes were based on United Kingdom, House of Commons, Report from the Select Committee on Aborigines (British Settlements) (1837), and directed at surviving natives in, eg, Port Phillip and SA. Most of the report was concerned with problems in the Cape Colony. It did, however, recommend a framework of ‘protection’ for the Australian colonies based largely on George Augustus Robinson’s peripatetic approach in Van Diemen’s Land.

[20] In Kruger [1997] HCA 27; (1997) 190 CLR 1, 52, Dawson J stated that ‘[t]he predecessor to the [1918 Ordinance] was the Northern Territory Aboriginals Act 1910 (SA)’, treating the Ordinance as ‘[i]n relevant respects ... not differ[ent] from the Act which it repealed’. Both were ‘prompted by the plight of Aboriginals in the Northern Territory who were said to be “rapidly decreasing through disease, neglect, and insanitary conditions”’. For Toohey and Gummow JJ, however, the Ordinance’s genealogy was more ancient. Discussing its ‘legislative history’, Toohey J referred to comments by Drummond J in Wik Peoples v Queensland (1996) 63 FCR 450, 460 about the House of Commons report: Kruger [1997] HCA 27; (1997) 190 CLR 1, 76. Gummow J made similar comments about the report, early ‘protectorates’, subsequent ‘protection’ legislation in Vic, WA and Qld, and controls on supply of liquor in NSW: at 158–9. For Toohey J, however, the 1918 Ordinance was really based on the Aborigines Act 1905 (WA): at 76. This is a more accurate characterisation: the 1905 WA Act was the first detailed 20th century ‘protection’ law. Unlike the ancestor of the 20th century ‘protection’ laws, the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), the Aborigines Act 1905 (WA) appointed the Chief Protector legal guardian of ‘aboriginal’ and ‘half-caste’ children (s 8), sought to recover from ‘alleged fathers’ public monies spent on the maintenance of the latter (s 34), imposed detailed controls on miscegenation (ss 40–3), and allowed for ‘aboriginals’ or ‘half-castes’ to be excluded from towns (s 39). Nonetheless, Toohey J also referred to the 1910 SA legislation as part of the ‘provenance’ of the 1918 Ordinance because it contained provisions similar to ss 7 and 16: Kruger [1997] HCA 27; (1997) 190 CLR 1, 76 (Toohey J). The 1910 SA Act, however, did not contain a provision mirroring s 6: the Chief Protector enjoyed no general powers to take a person into ‘care, custody or control’.

[21] On ‘fiat history’, see Alfred Kelly, ‘Clio and the Court: An Illicit Love Affair’ [1965] Supreme Court Review 119. This process is most obvious in the native title case Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32, 137, but also implicit in a similar decision in Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 616 (on appeal, Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 287). In these cases, Federal Court judges decided that declarations of towns as ‘protected areas’, which Aborigines were not permitted to enter without labour permits under, respectively, s 11 of the 1918 Ordinance and s 39 of the Aborigines Act 1905 (WA), had not extinguished native title to those areas because the declarations were for the benefit of Aboriginal people.

[22] The provisions discussed here were not always a feature of southern Australian ‘protection’ and ‘welfare’ laws. In the north and west of the continent, greater reliance on cheap Aboriginal labour, and the greater visibility of miscegenation involving smaller white populations, led to greater regulatory focus on these issues.

[23] In public debate, Aboriginal ‘unequal pay’ is often attributed to the exclusion of Aborigines from awards before the Cattle Station Industry (Northern Territory) Award, 1951 [1966] CthArbRp 148; (1966) 113 CAR 651. But ‘protection’ legislation itself allowed discriminatory Aboriginal employment: see, eg, Aboriginals Ordinance 1918 Regulations (NT) reg 11, form 2, which licensed permanent employment of ‘aboriginals’ in ‘Country Districts’ at rates of 5 s per person a week (10 s a month of which could be taken by the Protector to be held in ‘trust’) plus food, clothing and tobacco, and temporary employment of other ‘aboriginals’ for these rations alone. These wages are little more than half of the 42 s per 6-day week laid down as a minimum family wage (for two adults and three children) by Higgins J a decade earlier in the Harvester judgment: Ex parte H V McKay [1907] CthArbRp 12; (1907) 2 CAR 1. The Wards’ Employment Ordinance 1953 (NT) also licensed employment of wards under separate conditions (s 38) and allowed the declaration of ‘wards’ as being ‘in training’ for up to six years (ss 15, 25–31) under separate ‘allowances’ and wages (s 19).

[24] Although O’Loughlin J referred to children’s relatives being permitted by institutional or departmental policy to visit them, families living on reserves needed not only a permit to enter the town in which the institution was located, but also a permit to leave the reserve in the first place: s 16 of the 1918 Ordinance; ss 17 and 20 of the Welfare Ordinance. Under s 47 of the Welfare Ordinance, they also needed a permit to enter the institution.

[25] ‘Town Districts’ (including Darwin but not, initially, Alice Springs) were ‘prohibited areas’ under s 11 of the 1918 Ordinance and ss 55–60 of the Welfare Ordinance. A sunset curfew applied to Aboriginal labourers permitted to be in these areas, who were required to live with their employers or in the Aboriginal Compound: Aboriginals Ordinance 1918 Regulations (NT), regs 14–17. Aborigines camping or ‘loitering’ in town could also be ordered out, or convicted of an offence for failing to use designated camping grounds: see, eg, ss 17, 18 and 50 of the 1918 Ordinance.

[26] Dancing was not specifically outlawed, but many other forms of interracial interaction were. These included: entry by white people (other than officials) to reserves or institutions (s 19 of the 1918 Ordinance; ss 45 and 47 of the Welfare Ordinance) or taking ‘aboriginals’ out of them (s 20 of the 1918 Ordinance; s 23 of the Welfare Ordinance); mining on reserves (s 21 of the 1918 Ordinance); employment of ‘aboriginals’ by male ‘Asiatics’ or other ‘unfit’ persons (s 23 of the 1918 Ordinance); employment of female ‘aboriginals’ and ‘half-castes’ at sea (s 32 of the 1918 Ordinance); marriage between female ‘aboriginals’ and ‘non-aboriginals’ without the Protector’s and Administrator’s consent (s 45 of the 1918 Ordinance; s 67 of the Welfare Ordinance); entry by unauthorised white people into an area within five chains of where ‘aboriginals’ or female ‘half-castes’ were camping (s 51 of the 1918 Ordinance; s 51 of the Welfare Ordinance); and a wide range of sexual or pre-sexual activities: ‘habitual consorting’ by non-Aboriginals with female ‘aboriginals’ or ‘half-castes’; keeping them as mistresses or unlawfully having ‘carnal knowledge’ of them (a statutory offence which may have substituted for more serious criminal proceedings where women were sexually assaulted); cohabitation of wards and non-wards; being in the company of a female ward other than one’s wife between sunset and sunrise; and having sex with a female ward to whom one was not married (s 53 of the 1918 Ordinance; ss 61–62 and 64 of the Welfare Ordinance, applied in Raabe v Wellington (Unreported, Supreme Court of the NT, Kriewaldt J, 21 November 1957). Under s 68 of the Welfare Ordinance, female wards could not be prosecuted for some of these offences, but could be prosecuted for soliciting.

[27] Section 58 of the 1918 Ordinance; s 82 of the Welfare Ordinance. In the infamous Tuckiar v The King [1934] HCA 49; (1934) 52 CLR 335, the Chief Protector of Aboriginals (Dr Cecil Cook) instructed defence counsel, and was involved in counsel’s ‘indefensible’ consultations with the trial judge about how to conduct himself in light of the accused’s ‘confession’. Despite the Protector’s involvement, the High Court, which acquitted Tuckiar because a fair retrial was not possible, reminded the parties that: ‘The purpose of the trial was not to vindicate the deceased constable [who on one version of the evidence had engaged in sexual intercourse with one of Tuckiar’s wives], but to inquire into the guilt of the living aboriginal’: at 345 (Gavan Duffy CJ, Dixon, Evatt and McTiernan JJ).

[28] The 1918 Ordinance originally penalised (by cancellation of an ‘aboriginal’s’ ‘town entry’ permit) an Aborigine being in a hotel where he was not an employee: s 48. Section 10 of the Aboriginals Ordinance 1933 (NT) inserted s 49A, which made it an offence on the part of an ‘aboriginal’ or ‘half-caste’ to drink alcohol, but this was repealed by s 7 of the Aboriginals Ordinance 1941 (NT).

[29] See, eg, s 49 of the 1918 Ordinance (offence to sell or give alcohol or opium to ‘aboriginals’ or ‘half-castes’). The Licensing Ordinance 1939 (NT) continued to penalise supply of liquor to an ‘aboriginal’ or, later, a ‘ward’. It was considered by the High Court in Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 (one of many cases in which police gave money to Aborigines to encourage them to seek alcohol from publicans or other whites). A person could be convicted of an offence under s 141 even if he or she was an Aboriginal holder of a ‘dog licence’ or a ‘ward’: Camfoo v McEvoy (1962) 3 FLR 81; Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664. Section 141 prosecutions included those where alcohol was used in an attempt to secure women for sex: Rasmussen v Hook (Unreported, Supreme Court of the NT, Kriewaldt J, 5 April 1956).

[30] However, the likelihood of these issues being aired in modern litigation is remote. For an exception, see the Palm Island racial discrimination case: Bligh v Queensland [1996] HREOCA 28. An appeal in Yougarla v Western Australia (1999) 21 WAR 488, which contests the repeal of former s 70 of the Constitution Act 1889 (WA), requiring expenditure of one per cent of colonial revenue on Aborigines, was heard by the High Court in March 2001: Transcript of Proceedings, Yougarla v Western Australia (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 27 March 2001).

[31] However, if, as argued below, the ‘independent discretion’ rule is no longer appropriate, should the applicants get the benefit of that ‘change’ in the common law? The imposition of limitation periods in ordinary cases serves to ensure that the law applied bears some temporal connection to the tortious act. But see the discussion of the lack of certainty caused by the eventual assimilation of occupier’s liability into the law of negligence in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. For an interesting discussion of a related question (the application of changing judicial interpretations of statutes authorising detention), see Peter Cane, ‘The Temporal Element in Law’ (2001) 117 Law Quarterly Review 5.

[32] (1994) 35 NSWLR 497. In this case, the NSW Court of Appeal extended the relevant limitation period by three decades before trial. However, the trial before Abadee J (Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86) failed to produce witnesses and information on which the plaintiff relied for her extension of time. A differently constituted Court of Appeal (on appeal from Abadee J) commented that: ‘The trial judge’s conclusions as to the effects of delay in bringing the proceedings, when read with the authorities decided since ... 1994, suggest that were a similar matter to arise now, the outcome of an application to extend the limitation period may well be different’: Williams [No 2] (Appeal) [2000] Aust Torts Reports 81-578, 64,140 (Heydon JA, Spigelman CJ and Sheller JA concurring).

[33] Cubillo v Commonwealth [1999] FCA 518; (1999) 89 FCR 528 (‘Cubillo [No 1]’).

[34] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

[35] Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 was a case of the first kind, whereas Cubillo [No 1] [1999] FCA 518; (1999) 89 FCR 528 was a case of the second. In Cubillo [No 1], O’Loughlin J considered a Commonwealth motion to strike out the applicants’ statements of claim and for summary dismissal of the actions under O 20, r 2 of the Federal Court Rules, which allows the Court to stay or dismiss a proceeding which discloses no reasonable cause of action, is frivolous or vexatious or is an abuse of the process of the Court. But the test to be applied by a court acting on such a motion (whether under rules of court or exercising its inherent jurisdiction) is a strict one: ‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal’: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 (Barwick CJ). See also Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 and the cautious approach of the Qld Court of Appeal to the claim for a share in the Ned Kelly reward money by those who claim to be descendants of Aboriginal trackers in Noble v Victoria [1999] QCA 110; [2000] 2 Qd R 154. By contrast, a lower test seems to apply (even where a limitations statute expressly requires the plaintiff to demonstrate a cause of action) where the issue comes before a court on the plaintiff’s own motion: eg, Johnson v Department of Community Services (Unreported, Supreme Court of NSW, Harrison M, 29 June 1999).

[36] The information collected over time by governments about Aborigines, and even details of the people involved in collecting and administering it, may only be discoverable by commencing litigation. However, some governments’ records of Aboriginal lives may now appear to be more freely available under archival access programs instituted since the Bringing Them Home inquiry. However, there remains Aboriginal dissatisfaction with a National Library oral history project, and with access to records for people living far from capital cities: Senate Legal and Constitutional References Committee, above n 5, ch 2.

[37] The weight of the symbolic value of ‘Stolen Generations’ litigation should not be underestimated. As noted, from the Aboriginal perspective, there is a tendency for such litigation to be understood as part of a wider political campaign of ‘fighting for our rights’ — an approach which seems to derive some support from Aboriginal cultural values, as well as from recent outcomes understood as ‘successes’ in the courts. On the other side of the fence, the Howard government has made considerable political mileage out of events which suggest that an indigenous ‘generation’ might not have been ‘stolen’: see, eg, the Prime Minister’s response to former Aboriginal and Torres Strait Islander Commission Chair Lowitja O’Donoghue’s public admission that her white father had placed her in the Colebrook Home: Australian Broadcasting Corporation, ‘Stolen Generation Debate Re-Ignited’, The World Today, 23 February 2001, <http://

www.abc.net.au/worldtoday/s250904.htm> at 30 March 2001 (copy on file with author). The difficulties of symbolic, ‘representative’ litigation for the solicitor–client relationship were discussed in the US context by Derrick Bell, ‘Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation’ (1976) 85 Yale Law Journal 470.

[38] The Minister representing the Minister for Aboriginal Affairs told Parliament that the litigation had cost the Commonwealth almost $8.5 million in legal costs plus $770 800 spent in private investigation services: Commonwealth, Parliamentary Debates, House of Representatives, 26 February 2001, 24 438 (Philip Ruddock). The total cost of the litigation (including legal aid funding to the applicants) was estimated to be in the vicinity of $10 million: see Senate Legal and Constitutional References Committee, above n 5, 234.

[39] See, eg, Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998).

[40] See, eg, the second schedule to the draft determination in Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159.

[41] The Commonwealth has pledged $63 million over four years for archival work ($2 million), family support and parenting programs ($6 million), a National Library oral history project ($1.6 million), a ‘boost’ to culture and language maintenance programs ($9 million), a national network of family reunion services based on the NSW LinkUp model ($11.25 million), 50 new counsellors for those affected by past policies or attempting family reunions ($16 million) and expansion of regional ‘emotional and social wellbeing centres’ ($17 million): see Senate Legal and Constitutional References Committee, above n 5, 109. This package pales into insignificance beside the eight-year, tax-funded $1.7 billion to be spent on the Dairy Industry Adjustment Package, to benefit 13 500 producers and their communities.

Evidence to the Senate Legal and Constitutional References Committee inquiry indicates that some Bringing Them Home funding has been ‘re-badged’ out of existing budgets, some projects are yet to start because the Commonwealth cannot agree with Aboriginal groups on the model for ‘LinkUp’ services and some money is in danger of being misspent because it has been entrusted to inappropriate agencies: Senate Legal and Constitutional References Committee, above n 5, 55–7. Perhaps most interestingly, some submissions from organisations representing members of the ‘Stolen Generations’ and others to the Senate inquiry challenged the appropriateness of Aboriginal-run agencies providing services to ‘assimilated’ people: at chs 1–2, 5.

Finally, $63 million is considerably more than the $870 000 granted to date to the Child Migrant Trust to benefit former child migrants from Britain. However, although official inquiries have notoriously failed to identify the numbers of separated children of indigenous descent, those still living may exceed the 3500 children imported from Britain. Given high Aboriginal and Torres Strait Islander fertility rates, the number of descendants of separated indigenous children (also identified by HREOC as affected by their parents’ removal and institutionalisation: HREOC, above n 5, 222–8) is also likely to exceed the number of descendants of former child migrants. Finally, former child migrants have received additional funds for family reunion travel from the UK government, and may yet receive more from Australian governments as a result of the present Senate Community Affairs References Committee Inquiry into Child Migration.

[42] Senate Legal and Constitutional References Committee, above n 5, 43.

[43] Legacies of removal for the person involved that were documented by HREOC included: post-traumatic stress disorder (including as a result of widespread physical and sexual abuse in institutions and foster homes); mental illnesses (caused by separation from, and no proper replacement of, the primary carer) and associated anti-social behaviour (including recidivist criminality); poor physical health (caused by depression); substance abuse, violence, suicide and self-mutilation; low educational achievement and lack of financial resources (caused by poor training and labour exploitation in institutions) and associated poverty and unemployment; inability to form relationships and to parent their own children; problems accepting Aboriginal identity and re-establishing relationships with Aboriginal families (as a result of having experienced Aboriginality as a negative for most of their life); and loss of access to Aboriginal culture, including, in some cases, loss of language and native title rights or the ability to be part of a land rights claim. Legacies for the family or community included: self-imposed exile from the Aboriginal community (by families trying to protect their children against being removed); trauma arising from separation and the shame of being ‘failures’ as parents; substance abuse; increased morbidity and mortality; a devaluation of Aboriginal parenting and authority; and loss of community cohesion and cultural viability. Legacies for subsequent generations included: difficulties in parenting (stemming from inadequate parenting by a parent who was removed as a child, or whose own parent was removed); associated behavioural problems in children, and an associated risk of child removal in the present; as well as violence, substance abuse, depression and mental illness. See HREOC, above n 5, pt 3. O’Loughlin J’s findings regarding the impact of removal on Mrs Cubillo and Mr Gunner are discussed further below.

[44] Counselling records are not protected by privilege and may be subpoenaed where they are not protected by statute (eg, as is the case for criminal and sexual assault cases in NSW: see Criminal Procedure Act 1986 (NSW) pt 7; Evidence Act 1995 (NSW) pt 3.10, div 1B).

[45] Mrs Cubillo claimed that she was removed from the care of her mother’s sister, who in Aboriginal terms would also have been a ‘mother’: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 231.

[46] Ibid 118.

[47] Ibid 137.

[48] Unlike in Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86 and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 (‘Crimmins’) (discussed below), there were no statutory successors to these officers who could be sued. The Social Welfare Ordinance 1964 (NT), which repealed the Welfare Ordinance, preserved existing Aboriginal reserves but made no provision for the new Director of Social Welfare to take over from the former Director of Welfare.

[49] Sr Eileen Heath, former Superintendent of St Mary’s hostel: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 329.

[50] Ibid 569. On her evidence, Aboriginal families, including younger children, lived on the outskirts of the settlement in humpies: at 238.

[51] The Commonwealth administered the NT directly from the time of its surrender by SA (1911) until the grant of self-government in 1978.

[52] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 116.

[53] On the evidence, in the late 1940s and early 1950s AIM had about 50 missionaries in missions on the Murray River, throughout NSW and Qld, and in the NT at Darwin, Katherine, Newcastle Waters and Borroloola. Retta Dixon Home was AIM’s only home: ibid 267–8.

[54] Ibid 238. Native Affairs took over administration of Phillip Creek in 1951.

[55] Ibid 231–2.

[56] Ibid 236.

[57] Ie, her mother’s sister, whom she regarded as her mother: see above n 45.

[58] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 241.

[59] Ibid 239.

[60] Ibid 266.

[61] Ibid 231, 238, 241, 328. The conflicting evidence on the whereabouts of Maisie and Maisie’s mother came from Maisie’s daughters, Kathleen and Eileen Napanangka, who are considerably older than Mrs Cubillo: at 239–41.

[62] Ibid 246–7, 329.

[63] The judgment does not expressly say so, but it appears that the earlier practice of appointing police as ‘protectors of aborigines’ was supplanted by the 1940s through the appointment of Native Affairs ‘patrol officers’. For a history of these officers’ work, see also Jeremy Long, The Go-Betweens: Patrol Officers in Aboriginal Affairs Administration in the Northern Territory 1936–74 (1992).

[64] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 262–3, 265, 266.

[65] Ibid 248.

[66] Ibid 265.

[67] Ibid 267.

[68] Ibid 323–4.

[69] Ibid 110.

[70] This apparently innocuous term was a regulatory construct (see, eg, its use in the original reg 13(e) of the Aboriginals Ordinance 1918 Regulations (NT) under the 1918 Ordinance, which required the setting apart of a portion of every ‘station, mine or run’ as such a camp and its notification to the Protector). The term acquired general currency to refer to places proximate to, and in economic symbiosis with, these non-Aboriginal economic enterprises.

[71] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 338–9, 343.

[72] The judgment and evidence seem to imply that Topsy was a ‘full-blood’ Aboriginal woman: see, eg, ibid 340. She was a ‘housegirl’ in the station: at 349. There was evidence that Peter’s mother had rejected him as a baby (at 350–1, 359–60, 557–8), but it did not support findings that she tried to kill him by putting him down a rabbit burrow or leaving him on an ant hill: at 352, 393, 557–8. O’Loughlin J found that, by the time of Peter’s removal, he was accepted by his mother and the Utopia community: at 338, 360, 376–7.

[73] Peter Gunner ‘Snr’ himself gave evidence that he was Mr Gunner’s father: ibid 122. This was supported by a contemporary report of Mr Gunner’s birth: at 338.

[74] In his opening, Mr Rush QC for Mr Gunner stated that Mr Sid Kunoth was Mr Gunner’s father: ibid 390.

[75] Ibid 496.

[76] Ibid 342–3, 345–6.

[77] Ibid 344, 361.

[78] Ibid 341, 346.

[79] Ibid 131.

[80] Ibid 366.

[81] Ibid 123, 131.

[82] Ibid 383.

[83] Ibid 382, 383, 384, 455.

[84] Ibid 378–80.

[85] That is, before 1939, when s 6 of the Aboriginals Ordinance 1939 (NT) changed this official’s title.

[86] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 154.

[87] In turn, such policy developments have reflected changes in the ‘Aboriginal’ population, and even changes in thinking about the nature of ‘race’ itself. As noted, early 19th century ‘protectorates’ tended to focus on ‘remnant’ ‘native’ populations. These tended to be mainly people of so-called ‘full’ descent, but could also include the small number of ‘half-castes’, particularly if their labour was sought after (see, eg, Act No 6 of 1844 (WA) which prohibited ‘enticing’ of ‘Girls of the Aboriginal Race from School, or from any Service in which they are employed’). Since pre-Darwinian theories of racial identity tended to hold that races were stable types, the prospect of ‘half-castes’ increasing in large numbers does not seem to have been seriously contemplated. More intrusive ‘protection’ laws, commencing with s 8 of the Aborigines Protection Act 1869 (Vic), treated as ‘aboriginals’ those of full descent and those of ‘mixed’ descent who lived like them. (This Victorian experiment, reversed in the 1880s with an attempt to ‘merge’ ‘half-castes’ into the general population by evicting them from reserves, was reinstated in 1910: John Chesterman and Brian Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997) ch 1; Bain Attwood, The Making of the Aborigines (1989) ch 5.)

[88] See the discussion of the meaning of ‘aboriginal native’ in the text accompanying below n 158.

[89] See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 151–2. However, this was the definition of ‘aboriginal’ found in the original Ordinance. Although nothing turned on it in the case, by 1947 this definition had been extended to cover all ‘male half-castes’ aged 18 to 21 (see s 2 of the Aboriginals Ordinance (No 2) 1924 (NT)) and those who were older whom the Director believed were incapable of managing their own affairs.

[90] Section 3 of the 1918 Ordinance. See also Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 152.

[91] Under s 2 of the Aboriginals Ordinance 1936 (NT), inserting s 3A, revocable ‘dog licences’ (exemption certificates) became available to statutory ‘half-castes’ who sought relief from its application; these were extended to ‘aboriginals’ generally in 1943: Aboriginals Ordinance 1943 (NT) s 2, amending s 3A of the 1918 Ordinance.

[92] Other provisions of the 1918 Ordinance extended to all ‘female half-castes’ as well as ‘aboriginals’ — eg, s 53 of the 1918 Ordinance, relating to ‘habitual consorting’ or being out after dark with ‘a female aboriginal or half-caste’. It appears nothing turned on the extended definition of ‘half-caste’ in this case, as it was accepted that Mrs Cubillo’s mother was an Aboriginal woman of ‘full’ descent and her father was a white man.

[93] See the reference to the first two clauses of this provision in Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 484.

[94] South Australian Acts continued to operate in the NT as Commonwealth Ordinances after the Territory’s surrender to the Commonwealth by force of s 7 of the Northern Territory Acceptance Act 1910 (Cth). Section 5 of the Northern Territory (Administration) Act 1910 (Cth) provided that any South Australian law that continued in force in the Territory under s 7 of the Northern Territory Acceptance Act 1910 (Cth) had effect as if it were a law of the Territory, subject to any Ordinance made by the Governor-General.

[95] Eg, a ‘State child’ under s 4 of the State Children Act 1895 (SA) included a ‘neglected’ or ‘destitute’ child, one convicted of an offence or, from 1934, one committed directly to the control and custody of the State Children’s Council: see State Children Ordinance 1934 (NT) s 3, amending s 4. The Council had the ‘care, management and control of the persons and property of all State children’: State Children Act 1895 (SA) s 16.

[96] The State Children Ordinance 1934 (NT) allowed the Council, with the Administrator’s consent, to send children committed directly to its care outside the Territory to some other part of the Commonwealth ‘in order that the child may be there placed under control and maintained in accordance with arrangements made by the Council’: s 39A. This provision was extended to allow placement elsewhere in the Territory in 1952: State Children Ordinance 1952 (NT) s 4, amending s 39A. These provisions may have underpinned the placement of some ‘coloured’ children in schools in SA, particularly after 1952. See below n 231 and accompanying text. There was a provision in the 1918 Ordinance allowing the Director of Native Welfare to authorise persons to remove ‘aboriginals’ or ‘female half-castes’ or male ‘half-caste’ children from the Territory: s 15. However, it made no reference to the removed person’s ‘care, custody or control’. Payment of a recognisance was required. It seems most likely that these provisions would have been used by non-Aborigines to secure Aborigines from across the border for their own purposes — eg, as employees or fellow missionaries. Aborigines may well have used them to secure spouses or to maintain contact with relatives.

[97] In Kruger [1997] HCA 27; (1997) 190 CLR 1, 52, Dawson J said that ‘the precise scope of s 7 ... is far from clear’. In Ross v Chambers (Unreported, Supreme Court of the NT, Kriewaldt J, 5 April 1956) (‘Ross’), Kriewaldt J was initially under the mistaken impression that the position of Aboriginal people before him was governed by the original s 7, when in fact it was governed by s 7 as amended in 1953. In that context, Kriewaldt J observed that the language of s 7 was confusing as to whether all ‘aboriginals’ and ‘half-caste children’ or only ‘aboriginal children’ and ‘half-caste children’ were in the Director’s guardianship: at 74. His Honour considered that the provision emerged out of child guardianship provisions in the Aborigines Act 1905 (WA) and the Aborigines Act 1911 (SA), and that it should therefore be confined to children. This appears to be consistent with the view taken by O’Loughlin J in Cubillo. However, in Ross (Unreported, Supreme Court of the NT, Kriewaldt J, 5 April 1956) 75, Kriewaldt J noted that Fullagar J in Waters v Commonwealth [1951] HCA 9; (1951) 82 CLR 188, 193 seemed to regard the original s 7 as extending to adult ‘aboriginals’. For further discussion of these cases, see below nn 102, 134. In Ross (Unreported, Supreme Court of the NT, 5 April 1956, Kriewaldt J) 77, Kriewaldt J also considered and rejected the possibility that the word ‘legal’ confined the term ‘guardian’ in s 7 to guardianship for legal purposes — rather, the composite term meant a guardian ‘at law’. His Honour noted that the composite term (as opposed to simply ‘guardian’, used in ordinary child welfare legislation) had been used as early as 1844 in legislation permitting ‘apprenticeship’ of Aboriginal children.

[98] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 468.

[99] Ibid 464, 466–7. This does appear to be a difference between the 1918 Ordinance and other welfare laws. Eg, s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth), which applied to child migrants, provided:

The Minister shall be the guardian of the person, and of the estate in Australia, of every immigrant child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of twenty-one years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.

[100] See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 153–4.

[101] The sub-s (3) exemptions would seem to explain, eg, how it was that workers in ‘native camps’ managed to avoid being sent to reserves or institutions.

[102] For Dawson J, ‘whilst s 16 did not contain any explicit requirement that the powers which it conferred were to be exercised for the welfare of Aboriginals or “half-castes”, it is clear enough that it was so circumscribed’: Kruger [1997] HCA 27; (1997) 190 CLR 1, 51–2. For Brennan CJ, although s 16 was not so limited, as a matter of construction it did not authorise ‘an intentional or purposeful infliction of mental harm’. All of the Director’s powers must have been exercised reasonably: at 40. For Gummow J, the Director’s powers were ‘reasonably capable of being seen as necessary for ... the welfare and protection of those persons’: at 162. Waters v Commonwealth [1951] HCA 9; (1951) 82 CLR 188 illustrates a use of the detention power which reflected the interests of others besides the person themself. (Indeed, Fullagar J regarded the person’s interests as ‘by no means the only legitimate consideration’: at 195.) Fred Nadpur Waters was removed by the Director from Darwin to Haasts Bluff reserve, 200 km from Alice Springs and something like 1700 km from Darwin, because of his involvement in organising a ‘protest strike’ at Bagot Reserve in Darwin, and in otherwise ‘enticing’ (with the encouragement of the North Australia Workers’ Union) Darwin Aborigines not to work.

[103] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 153–4, 457, 462.

[104] O’Loughlin J (ibid 247) commented:

Perhaps they existed and have since been lost or destroyed as a result of Cyclone Tracy or through some other unknown cause. Perhaps no such documents ever existed. Should that be the case, one might think that the Native Affairs Branch had no official involvement in the decision to remove the children. One would think that a government department that was involved specifically (as distinct from merely lending a truck and a driver) in the removal of sixteen part-Aboriginal children from their families would have recorded such a decision in writing.

[105] Mr Penhall was still alive and gave evidence.

[106] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 246–8, 329.

[107] Ibid 263–4, 265, 459, 460, 575.

[108] This may have suggested that her pre-1953 detention was unlawful. However, as discussed below, O’Loughlin J regarded it as relevant only to an action in false imprisonment, where the defendant must prove the lawfulness of the detention.

[109] See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 153. Although nothing turned on it in this case, it is worth observing that, from 1941, ‘aboriginal institutions’ could be approved for the purpose of holding ‘aboriginal’ and ‘half-caste’ adults as well as children. Thereafter, any of these ‘inmates’ were also under the ‘control and supervision’ of the Superintendent. From 1941, ‘aboriginal institutions’ were also not restricted to those established ‘by private contributions’: Aboriginals Ordinance 1941 (NT) s 2.

[110] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 153.

[111] Ibid 211, 331–2. Sr Heath was demoted to ‘Matron’ in 1950 because she was a single woman and the church wanted a married couple in charge of the home: at 131, 423. When she left in 1955, the Welfare Branch of the NT Administration hired her eagerly: at 422–3.

[112] Ibid 208, 262–3, 331–2. The possibility that this may have created problems for the lawfulness of the first few months of Lorna’s detention does not seem to have been discussed by O’Loughlin J. However, since Retta Dixon Home was on a reserve, the Director may have made a lawful decision under s 16 to confine her to a reserve, rather than an institution.

[113] Ibid 267.

[114] See ibid 155. The final benedictory phrase had been used in ‘protection’ laws since the 19th century. It probably originated in s 6 of the Aborigines Protection Act 1886 (WA).

[115] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 155, 208, 212–13, 488–9, 493–5. Further, ‘the presence of the words “as far as practicable” and “when possible” [in sub-ss (c) and (d)] are indicators that the duties were never intended to be absolute; the legislation did not impose any mandatory duties on the directors’: at 494.

[116] Ibid 156.

[117] Ibid.

[118] After 1942, missions received the child endowment due for children whom they ‘supervised and assisted’ for more than six months of the year. Evidence before O’Loughlin J referred to this source of funds: ibid 210. The relevant legislation seems to have been s 6 of the Child Endowment Act 1942 (Cth): see John McCorquodale, Aborigines and the Law: A Digest (1987) 6.

[119] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 270.

[120] See below nn 237–8 and accompanying text.

[121] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 210, 215.

[122] Aboriginals Ordinance (No 2) 1953 (NT) (‘the 1953 Ordinance’), which commenced on 1 October 1953.

[123] Lobbying was probably encouraged by administering officials: Jeremy Long, ‘The Administration of the Part-Aboriginals of the Northern Territory’ (1966) 37 Oceania 186.

[124] Although the adjectival form was still used, from 1953 the statutory term ‘Aboriginal’ was at least capitalised, although ‘aboriginal native’ was not.

[125] As discussed in the text accompanying below n 158, the term ‘aboriginal native’ meant a person of ‘preponderantly’ Aboriginal descent.

[126] Aboriginals Ordinance 1936 (NT) s 2, inserting s 3A; Aboriginals Ordinance 1943 (NT) s 2, extending it to ‘aboriginals’ as well as ‘half-castes’.

[127] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 153, 230–1. This ‘committal order’ was in evidence.

[128] That is, she remained an ‘aboriginal’ under s 3 of the 1953 Ordinance, because the Director had exercised his s 16 power to detain her, even if it was not clear that she was an ‘aboriginal’ under s 3(c)(i) of the 1953 Ordinance because the evidence did not establish that the Director had used his s 6 power to take her into ‘care, custody or control’. O’Loughlin J seems not to distinguish between these alternative bases for her ongoing status as an ‘aboriginal’: ibid 153.

[129] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 323–4.

[130] Ibid 345. Gunner appears to have been declared an ‘Aboriginal’ to ensure that the Director, rather than his mother, paid his board at St Mary’s: at 345–6.

[131] Ibid 343.

[132] Ibid 152–3. It does not appear that the procedure involving a decision by the Administrator was used in Gunner’s case.

[133] Eg, in 1956 Director Giese told a Retta Dixon acting Superintendent that he had no power to authorise corporal punishment of ‘wards’, and that, as their legal guardian, he was obliged to take ‘appropriate action’ against those who inflicted it. This view was ‘vigorously contested’ by the acting Superintendent: ibid 209; see also at 318–19. Similarly, an acting Director told Miss Shankelton around 1954: ‘it is directed that any matters affecting the future welfare of wards of this Branch shall be referred in the first instance to this office for consideration by the child’s legal guardian’: at 225. (It is interesting that the Directors here refer to their charges as ‘wards’; it is possible that they were using the language of guardianship law, as the Welfare Ordinance had passed through the Legislative Council but had not yet become law. However, perhaps they were just anticipating the language of the Welfare Ordinance.)

[134] See above n 98. O’Loughlin J does not consider the amended s 7 separately from its predecessor. Just what powers the Director enjoyed as a guardian in relation to adult ‘aboriginals’ not in official care was considered in Ross (Unreported, Supreme Court of the NT, Kriewaldt J, 5 April 1956), a civil assault suit against owners of a cattle station by Aboriginal employees. Kriewaldt J treated adult ‘Aboriginals’ under s 7 guardianship provisions as able to sue in their own names because their relationship with the Director — ‘a species of perpetual tutelage’ — was not analogous to that of an infant ward qua his guardian. This decision may have prompted the more detailed definition of the Director of Welfare’s powers to commence actions on behalf of statutory ‘wards’ under the Welfare Ordinance.

[135] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 391.

[136] Ibid 343–4.

[137] Ibid 449.

[138] There is no real analysis of general law principles in the judgment.

[139] As extracted in the judgment, the ‘consent’ stated:

I, TOPSY KUNDRILBA being a full-blood Aboriginal (female) within the meaning of the Aboriginals Ordinance 1918–1953 of the Northern Territory, and residing at UTOPIA STATION do hereby request the DIRECTOR OF NATIVE AFFAIRS to declare my son PETER GUNNER aged seven (7) years, to be an Aboriginal within the meaning and for the purposes of the said Aboriginals Ordinance. MY reasons for requesting this action by the Director of Native Affairs are:

1. My son is a [sic] Part-European blood, his father being a European.
2. I desire my son to be educated and trained in accordance with accepted European standards, to which he is entitled by reason of his caste.
3. I am unable to provide the means by which my son may derive the benefits of a standard European education.
4. By placing my son in the care, custody and control of the Director of Native Affairs, the facilities of a standard education will be made available to him by admission to St Mary’s Church of England Hostel at Alice Springs.

See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 343 (emphasis added).

[140] This was consistent with some other evidence about other St Mary’s children — eg, a 1956 letter from a Native Affairs officer to a regional manager stating that ‘parents or guardians’ who declined to return their children to St Mary’s after the holidays could not be forced to do so: ibid 347. But the reference to ‘guardians’ would only be correct in the case of children who were not ‘aboriginals’ and subject to the Director’s ‘guardianship’.

[141] Ibid 376.

[142] Ibid 346–7, 348, 375, 376.

[143] Ibid 365, 375. Topsy died before the trial. There is not a lot of information about her in the judgment. The judge notes that she married an Aboriginal man of ‘full descent’: at 338.

[144] This was the position under s 7 of the 1918 Ordinance, but it was also the position under the general law. At common law, the mother of an ‘illegitimate’ child had its ‘care and control’ (a right to custody), but was not the guardian in the sense of having the legal right to control the child’s person (eg, conduct, religious upbringing, marriage and education). The child’s father was also not his or her legal guardian: see, eg, Anthony Dickey, Family Law (3rd ed, 1997) 273: ‘an illegitimate child was deemed to be the child of nobody; the child was held to be under the legal guardianship of nobody. Indeed, until the end of the 19th century such a child was not even being regarded as being in the legal custody of anybody, not even of its mother’ (emphasis added). But note the comments of Street CJ in considering the common law position before the Children (Equality of Status) Act 1976 (NSW): ‘It appears to be established by the authorities that, in the case of an illegitimate child, all the rights that are customarily incidents of technical legal guardianship in the case of a legitimate child, inhere in the mother’: Youngman v Lawson [1981] 1 NSWLR 439, 443. The mother’s right to custody of an illegitimate child is also discussed in Ex parte Vorhaeur; Re Steep (1968) 88 WN (Pt 1) (NSW) 135, 141–2 (Asprey J).

Further, although fathers had long enjoyed a power to appoint guardians of legitimate children by deed (see the Tenures Abolition Act 1660 (Eng) 12 Car 2, c 24), under South Australian law applicable to (at least legitimate) children in the NT in 1956, a mother enjoyed a power to appoint a general law guardian only after her own death (including a joint guardian with the father where the father survived her): Guardianship of Infants Act 1887 (SA) s 5. Courts of equity could also appoint guardians, including by reference to principles about the welfare of the child.

[145] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 345. The ‘committal order’ was in evidence.

[146] Ibid 212, 270, 334.

[147] See below nn 237–8 and accompanying text.

[148] In Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 109, Abadee J accepted the plaintiff’s submission that ‘the plaintiff's mother [Dora Williams] had been a ward of the Board ... and was therefore either a full blooded (the probability) or a half-caste Aborigine within the [Aborigines Protection Act 1909 (NSW)]’. On this basis, it seems to have been assumed that Ms Williams was a statutory ‘aborigine’ also. However, there are two problems with this analysis.

First, it was central to Ms Williams’ original claim that many of her problems stemmed from being transferred from a mission home for Aboriginal children to Lutanda Children’s Home because she was ‘light-skinned’. There was also evidence before Abadee J that many people at Lutanda did not know she was Aboriginal, although some did. It seems likely that her Aboriginality would have been more obvious to whites if she were a ‘half-caste’ in the sense of being descended from an Aboriginal mother and ‘an Irishman and a soldier in the 6th Division’, as Abadee J was prepared to accept: Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 109–10. The more likely possibility seems to be that Ms Williams’ mother herself had a white ancestor.

Secondly, if Mrs Williams were not a ‘half-caste’ in the strict sense, the Aborigines Protection Act 1909 (NSW) would not have applied to her in 1942, the year of her birth. The authority asserted over her by the Board was merely assumed, not lawful, authority. After 1940, the Act’s controls only applied to those children who were of ‘full’ or ‘half-caste’ descent, as his Honour recognised: Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 115.

The original s 3 of the Aborigines Protection Act 1909 (NSW) defined ‘Aborigine’ as ‘any full blooded aboriginal native of Australia and any person apparently having admixture of aboriginal blood who applies for and is in receipt of rations or aid from the Board or is residing on a reserve’: see also Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 215. This definition was amended in 1918 and 1936 to cover only ‘any full-blooded or half-caste aboriginal who is a native of Australia and who is temporarily or permanently resident in New South Wales`’: see at 215; Aborigines Protection (Amendment) Act 1918 (NSW) s 2, amending s 3.

Section 11 of the original Act gave the Board for the Protection of Aborigines power to apprentice the ‘child of any Aborigine, or the neglected child of any person apparently having an admixture of aboriginal blood in his veins’. Section 11A, inserted by s 3 of the Aborigines Protection Amending Act 1915 (NSW), allowed the Board to institutionalise those children who refused to become apprentices. A new s 13A, inserted by s 4 of the Aborigines Protection Amending Act 1915 (NSW), allowed the Board to ‘assume full control and custody of the child of any aborigine, if after due inquiry it is satisfied that such a course is in the interest of the moral or physical welfare of such child’, and to remove the child to ‘such control and care as it thinks best’. These probably were the provisions under which Ms Williams’ mother was institutionalised. The controls on ‘any neglected child of any person apparently having an admixture of aboriginal bloods in his veins’ were removed in 1918: Aborigines Protection (Amendment) Act 1918 (NSW) s 2.

Under 1936 amendments, the Board was given a new power to take an ‘aborigine or a person apparently having an admixture of aboriginal blood’ before a magistrate and have him committed to a reserve or institution controlled by the Board: Aborigines Protection (Amendment) Act 1936 (NSW) s 2, inserting s 8A. However, this did not occur in Ms Williams’ case.

1940 amendments discussed in detail by Abadee J (see Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 217–19) reconstituted the Board as the Aborigines’ Welfare Board: Aborigines Protection (Amendment) Act 1940 (NSW) s 2, amending s 4. They defined ‘child’ to mean ‘an aborigine under 18’ and ‘ward’ to mean a child committed to the control of the Board or to an institution approved under a new s 11, inserted by s 3 of the Aborigines Protection (Amendment) Act 1940 (NSW), which allowed the Board to establish such homes (as it subsequently did in the case of Cootamundra Girls’ Home and Kinchela Boys’ Home). The amendments allowed the Board ‘on the application of the parent or guardian of any child [to] admit such child to the control of the board’: Aborigines Protection (Amendment) Act 1940 (NSW) s 3, inserting s 7(2) (it was under this provision that Ms Williams was purportedly admitted by her mother — the Board then placed her in a private home run for Aborigines by the United Aborigines Mission). There was a separate procedure for admission of ‘neglected’ or ‘uncontrollable children’ by the Children’s Court under s 13A, inserted by s 3(e) of the Aborigines Protection (Amendment) Act 1940 (NSW).

Finally, 1943 amendments enacted early in Ms Williams’ life allowed the Board to have Aboriginal children adopted, boarded out or fostered: see Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 219–24. It was permitted to ‘board out’ children to ‘any charitable depot, home or hostel’ established for child welfare purposes: Aborigines Protection (Amendment) Act 1943 (NSW) s 4, inserting s 11D(2). These were the amendments under which Ms Williams was placed in an ordinary children’s home, rather than a Board home, in 1947.

On this analysis, it appears that, when approached by Dora Williams (whose only experience of care was that of the Board’s Cootamundra Home) with her new ‘illegitimate’ daughter, the Board should have directed Dora to the ordinary child welfare system, rather than purporting to take the child in under s 7(2). There was no suggestion that ordinary child welfare powers were used to accept the baby or detain her at any stage of her life — the judgment seems to assume (incorrectly, as I have tried to demonstrate) that Joy Williams was always subject to the Aborigines Protection Act 1909 (NSW): see, eg, Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 92.

[149] The High Court allowed block declarations of large numbers of wards in Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664, 667.

[150] There was no suggestion in the evidence that this occurred in Mr Gunner’s case.

[151] Section 15 of the Welfare Ordinance.

[152] Section 78 of the Welfare Ordinance. This power was limited to placement for one year. There is no suggestion that a curial order was made in Mr Gunner’s case. Aborigines were also entitled to their day in court under the Welfare Ordinance, but only to contest their declaration as wards after the event: an appeal against the Administrator’s decision to the Wards Appeal Tribunal was permitted by s 32.

[153] Section 14(2) of the Welfare Ordinance.

[154] Welfare Ordinance 1961 (NT) s 5.

[155] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 157.

[156] [1959] HCA 13; (1959) 100 CLR 664, 667. See also Long, ‘The Administration of the Part-Aboriginals’, above n 123, which O’Loughlin J cites in the judgment: ibid 159–60.

[157] Entitlement to vote in House of Representatives and Legislative Council elections was determined by reg 22 of the Northern Territory Electoral Regulations 1922 (NT) under the Northern Territory Representation Act 1922 (Cth). The entitlement of ‘aboriginal natives’ to enrol to vote changed over time, but other people of Aboriginal descent were always entitled to enrol. (Whether or not they knew they enjoyed this right, and whether they were in practice permitted to exercise it, are of course separate questions.) Briefly, the position of ‘aboriginal natives’ was as follows.

The original regulations provided (as had the Commonwealth Franchise Act 1902 (Cth)):

No aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific (except New Zealand) shall be entitled to have his name placed on or retained on any Roll or to vote at any election unless so entitled under section 41 of the Constitution.

(It seems unlikely that there were any Northern Territory Aborigines entitled to the benefit of s 41 of the Constitution, as that provision allows rights to vote in State (ie, in this case, South Australian) elections to generate rights to vote in Commonwealth elections ‘while the right [to vote in State elections] continues’. But if there were Aboriginal people enfranchised to vote in pre-federation South Australian elections, their right to vote would not have ‘continued’ after 1911, when the Territory was surrendered to the Commonwealth.)

A amendment to reg 22 under the Northern Territory Electoral Regulations 1925 (NT) added two further paragraphs relevant to ‘aboriginal natives’ of places other than Australia.

Regulation 22 was amended under the Northern Territory Electoral Regulations 1949 (NT) so that it relevantly provided:

No aboriginal native of Australia ... shall be entitled to have his name placed on or retained on any Roll or to vote at any election unless:

he is an aboriginal native of Australia and —

is, by virtue of a declaration in pursuance of section 3A of the Aboriginals Ordinance 1918–47 of the Territory, not deemed to be an aboriginal for the purposes of that Ordinance or any provision thereof; or

is or has been a member of the Defence Force.

As a result of the 1949 amendments, all former servicemen and women who were ‘aboriginal natives’ acquired the right to enrol to vote, as did other ‘aboriginal native’ holders of ‘dog licences’.

When the Welfare Ordinance commenced, reg 22(a) was amended so that it read as follows:

No aboriginal native of Australia ... shall be entitled to have his name placed on or retained on any Roll or to vote at any election unless:

he, being an aboriginal native of Australia —

is not a ward as defined by the Welfare Ordinance 1953–1955 of the Territory; or

is or has been a member of the Defence Force ...

The relationship between this provision and s 14(2) of the Welfare Ordinance seems to be a circular one: s 14(2) provided that one could not be declared a ward if one was entitled to vote or would be so entitled on attaining majority. The effect of the amendment to reg 22 seems to have been to ensure that ‘aboriginal natives’ who were ex-diggers could not have been declared wards under the Welfare Ordinance.

Finally, the Northern Territory Electoral Regulations 1961 (Cth) re-enacted reg 22 as follows:

An aboriginal native of Australia who is a ward as defined by the Welfare Ordinance 1953–60 of the Territory is not entitled to enrolment unless he is or has been a member of the Defence Force.

Again, the relationship between reg 22(2) and s 14(2) of the Welfare Ordinance seems to have been a circular one, with the result that the only effect of reg 22(2) was to ensure that ‘aboriginal native’ ex-diggers could not be declared wards.

[158] See John Chesterman and Brian Galligan (in association with Tom Clarke), ‘The Commonwealth Defines the Australian Citizen’ in John Chesterman and Brian Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997) 84.

[159] Peter Gunner’s education (like that of other ‘part-Aboriginal’ children: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 372; cf 415) was ineffective — he developed art skills but did not learn to read: at 370–1.

[160] State Children Ordinance (NT) ss 6, 16.

[161] State Children Ordinance (NT) ss 32–34; Children’s Protection Ordinance (NT) s 5.

[162] Child Welfare Ordinance 1958 (NT) s 36. The differences between the two ‘welfare’ regimes were highlighted by the Bringing Them Home report: HREOC, above n 5, app 7.

[163] Child Welfare Ordinance 1958 (NT) ss 9, 13.

[164] Child Welfare Ordinance 1958 (NT) ss 6, 7.

[165] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 222, 224.

[166] See Welfare Branch, Northern Territory Administration, Annual Report (1958–59) 90. Mr Giese sat on the new Child Welfare Council, along with (among others) a welfare officer and Archdeacon Bott: Welfare Branch, Northern Territory Administration, Annual Report (1959–60) 81.

[167] Welfare Branch, Northern Territory Administration, Annual Report (1958–59) 3.

[168] Section 5 of the Child Welfare Ordinance 1958 (NT) defined ‘welfare officer’ to mean a welfare officer under the Welfare Ordinance 1957 (NT). Under s 31 of the Child Welfare Ordinance 1958 (NT), welfare officers were given functions like taking neglected or destitute children into custody before bringing them before a court. Under s 11(3) of the Welfare Ordinance, welfare officers exercised ‘such powers and performe[d] such duties as ... directed and as are prescribed’.

[169] See above n 96.

[170] In 1957, there were 45 children in the State Children’s Council’s care, 43 of them ‘neglected’ or ‘destitute’. There were a further 78 Welfare Ordinance wards in institutions or with foster parents: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 317. Of course, the child welfare legislation did not permit control of adults as the Welfare Ordinance did.

[171] See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 157. Since Peter Gunner was not with his mother, presumably this last constraint did not apply to any exercise of this power over him by the Director.

[172] Ibid 157, 489–90. Once again, however, given the onus of proof, O’Loughlin J treated this as being relevant only to proceedings in false imprisonment.

[173] Welfare Ordinance No 2 1957 (NT) s 4.

[174] Under the original s 24, the Director was made ‘the guardian of all wards for all purposes’ except in circumstances similar to those set out in the amended s 24(1)(a).

[175] Section 25 provided:

(1) All property of a ward, whether corporeal or incorporeal, but not including [the ward’s own paintings] shall be held by the Director as trustee for the ward, and the Director shall undertake the general care and management of that property.

(1A) For the purposes of the last preceding sub-section, the Director

(a) shall be deemed to have possession of and may retain, let, sell, mortgage or dispose of, any of that property whether real or personal;

(b) may, in the name of the ward, receive or sue for the recovery of money or any other property due or belonging to or held in trust for the benefit of a ward and sue for damages for the conversion of, or injury to, the property of a ward; and

(c) may, in the name of, and on behalf of, a ward exercise any power exercisable by a ward and appoint a person to act as attorney or agent for any purpose connected with the property of the ward.

(3) [Provided that wards could transfer goods in their possession worth up to £10.]

(4) Except as provided in the last preceding sub-section, a transfer, purported transfer or agreement to transfer, made by a ward with respect to property of the ward held by the Director as trustee for the ward, has no effect to transfer the property or create an obligation in relation to the property.

Section 26 allowed the Director to pay debts and other costs, the ward’s maintenance costs and the costs of administering the ward’s property out of that property. Section 28 provided that the Director held the ward’s property on trust. On the difference between a general law guardian of an infant and a trustee, see Clay v Clay (2001) 178 ALR 193.

[176] After 1959, the Administrator in Council (citation added).

[177] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 489–90.

[178] The existence of powers to assist non-wards probably explains some of the evidence before O’Loughlin J about the Welfare Ordinance having a race-neutral operation.

[179] Cf Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 157–8.

[180] Ibid 158, 493–5.

[181] Ibid 158.

[182] Ibid 210.

[183] Ibid 452.

[184] Ibid 136; see generally at 161–2.

[185] HREOC, above n 5.

[186] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 133. His Honour had ‘read substantial sections’ of the Bringing Them Home report regarding the NT, but noted that these mainly related to pre-war removals. Appendix 7 of the Bringing Them Home (ibid) report does seem to make the distinctions between race-specific welfare legislation and ordinary child welfare legislation not made by his Honour.

[187] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 134–6. In the case of the 26 August 1999 motion of ‘sincere regret’ passed by the Commonwealth Parliament, his Honour regarded s 16 of the Parliamentary Privileges Act 1987 (Cth) as precluding the use of Hansard to refer to this motion. See Commonwealth, Parliamentary Debates, House of Representatives, 9205–22, 9234–6.

[188] As on so many related issues, his Honour held that there was no evidence on this issue relating to Mrs Cubillo, and that the evidence in relation to Mr Gunner suggested that the importance of parental affection was recognised: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 551. These evidentiary conclusions were not crucial, given his Honour’s interpretation of the Director’s removal power and his conclusion that there was no common law duty of care relating to its exercise.

[189] Ibid 293.

[190] In the 1930s, Chief Protector Cook had articulated a policy of biological assimilation (including to the first 1937 joint Commonwealth–States Native Affairs conference) which involved removing ‘half-caste’ girls to institutions and attempting to find them white husbands, leaving ‘half-caste’ boys on stations as ‘apprentices’ without marriage prospects. See Andrew Markus, Governing Savages (1990) 92–3; Apprentices (Half-Castes) Regulations 1930, promoted by Cook. During the Senate Legal and Constitutional inquiry into implementation of the Bringing Them Home report (HREOC, above n 5), the following exchange occurred between Senator Payne and former Commonwealth Minister Peter Howson:

Senator PAYNE — ... Mr Cook was known to use the words ‘breed them white’ as part of his approach to this issue.

Mr Howson — He was a little more forceful, but I cannot use the word he actually used.

Commonwealth, Senate, Legal and Constitutional References Committee, Canberra, 18 August 2000, 731. Cummings records a former institutional inmate as saying: ‘Dr Cook was funny. He never ever wanted us to marry half-castes, he wanted us to interbreed with the white race.’ It was commonly believed that Cook arranged marriages for European men who received favourable public service positions in return: Cummings, above n 11, 21.

[191] According to Cummings, above n 11, 84, in the 1950s four Retta Dixon women legally married men from Bagot Reserve, but Welfare Branch sought to discourage any further such unions. See also the accounts of the marriage of Tex and Nelly Camfoo in Gillian Cowlishaw, Rednecks, Eggheads and Blackfellas: A Study of Racial Power and Intimacy in Australia (1999) ch 5 and Gillian Cowlishaw, Tex Camfoo and Nelly Camfoo, Love against the Law: The Autobiographies of Tex and Nelly Camfoo (2000) ch 16.

[192] This approach had been approved in Kruger [1997] HCA 27; (1997) 190 CLR 1, 36 (Brennan CJ), 78 (Toohey J), 126–30 (Gaudron J), 158–9 (Gummow J).

[193] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 140, adapting a phrase which O’Loughlin J attributed to Professor Helen Haste.

[194] Ibid 139.

[195] Ibid 142.

[196] Ibid 140.

[197] Ibid 318–19.

[198] Ibid 140.

[199] [1999] NSWSC 843; (1999) 25 Fam LR 86, 209–14. Abadee J found that this psychological knowledge became prevalent in Australia only in the 1950s, after the publication of Dr John Bowlby’s World Health Organisation report, Maternal Care and Mental Health (1951).

[200] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 551.

[201] Ibid 195.

[202] Ibid 121.

[203] See Commonwealth Bureau of Statistics, Official Year Book of the Commonwealth of Australia (1938–47) vols 31–7. On the deficiencies of Aboriginal demography, particularly before the 1971 census, see L R Smith, The Aboriginal Population of Australia (1980).

[204] The Commonwealth’s census power in s 51(xi) of the Constitution had been interpreted as not permitting the counting of ‘aboriginal natives’ because they were excluded from the political census for federal Parliament by s 127 of the Constitution. Thus, before the 1971 census, people who were considered to be more than 50% Aboriginal (in terms of their genetic profile) were excluded from the official population figures: Australian Bureau of Statistics, ‘A Brief History of the Collection of Indigenous Statistics in Australia’, Indigenous Themes, <http://www.abs.

gov.au> at 31 March 2001 (copy on file with author).

[205] Cubillo [2000] FCA 1084; (1999) 174 ALR 97, 231, 343.

[206] Eg, elsewhere in a report referred to in the judgment by O’Loughlin J, Mr John Bleakley (the Queensland Chief Protector) complained in 1928 that, where cattle stations changed hands, resident Aboriginal populations were sometimes disowned and left in a state of ‘semi-starvation’ by the new owners. This, combined with the availability of motorised transport, meant that

the women find the temptation to supplement their meagre resources by trading in prostitution too strong ... As practically all public roads lead through the stations, ... these simple women are an easy prey to passing travellers, who, at times, are low enough to cheat them by paying with bogus money ... It was complained that motor car loads of men from bush townships or construction camps bent on ‘ginsprees,’ in other words drink and prostitution orgies, had given trouble on stations even 100 miles distant.

John Bleakley, The Aboriginals and Half-Castes of Central Australia and North Australia (1928) 9.

[207] The phenomenon of the ‘combo’ — a white man who sought (usually illicit) sex with Aboriginal women — is well recorded in Australian literature. For examples, see Xavier Herbert’s Mark Shillingsworth in Capricornia (1938) and Katharine Susannah Prichard’s Sam Geary in Coonardoo (1929).

[208] Indeed, in the 1930s the possible rise of a ‘coloured minority’ was the subject of considerable anxiety for both Chief Protector Neville in WA and Chief Protector Cook in the NT: see, eg, A O Neville, Australia’s Coloured Minority: Its Place in the Community (1947).

[209] See the accounts of the behaviour of ‘the copper’ and missionaries in Cowlishaw, Camfoo and Camfoo, above n 191, chs 8–9. Cummings, above n 11, 76, records allegations (apparently taken from archival files) that an AIM Superintendent of the Phillip Creek Settlement was ‘imprisoned for sexual assault against the female inmates of the settlement’, although a female missionary believed him to have been ‘framed’.

[210] According to Cummings, above n 11, 32, Director of Native Affairs Chinnery declared the road construction camps ‘protected areas’ under the 1918 Ordinance.

[211] This administration lasted until 1945: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 172. Military control appears to have been imposed under the National Security Act 1942 (Cth).

[212] Commonwealth, Senate, Legal and Constitutional References Committee, Canberra, 18 August 2000, 726 (Peter Howson). Mr Peter Howson’s evidence to the Senate inquiry into implementation of the Bringing Them Home report (HREOC, above n 5) was as follows (at 726):

As you know, 16 children were taken from Phillip Creek to Retta Dixon. The background to that is that apart from Mrs Cubillo, who was born before the war in 1938, the rest of them were born during the war. You may recall that there was an army depot at Banka Banka, which is near Tennant Creek. ... [T]he evidence is that at the army depot there were a number of camp followers, if I can use the term, whose services were provided in exchange for tobacco and so forth. At the end of the war the children born there were all gathered together, because they were the result of illicit, casual liaisons, and sent to the nearest mission, which happened to be originally at the Seven Mile and the Six Mile and at Phillip Creek. ... That is my best explanation of what happened and why suddenly there were these numbers. As you look at the numbers of people who were taken you will see that the majority of the numbers were taken ... in the period 1946 to 1950, and these were nearly all the result of wartime births.

[213] The figure given by Commonwealth Bureau of Statistics, Official Year Book of the Commonwealth of Australia for 1952–53 is ‘about 2000’ (vol 39, 326), that for 1954–55, 1659 (vol 42, 111), and that for 1960–61, 2318 (vol 50, 307).

[214] The Administrator reported in 1951 that 42 children had been removed during a two-year period. These seem to have included both voluntary and non-consensual removals: 23 were ‘[r]emoved from full-blood aboriginal camp’ and 12 ‘[a]t request of parent’: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 181. Only 45 boys and 65 girls were institutionalised between 1946 and 1951, which did not suggest a ‘large scale policy of forced removals’: at 182; see also at 458–9. Mr Penhall also gave evidence that in the 1940s and 1950s many ‘part-Aboriginal’ children lived with their families: at 227.

[215] Ibid 182. In 1954, an internal Commonwealth briefing described forcible separations as rare; O’Loughlin J agreed: at 190.

[216] Ibid 203.

[217] As noted above, according to Cummings, above n 11, 113 ‘part-Aborigines’ were the majority of state children in 1957.

[218] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 328.

[219] See generally Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 162–70. His Honour canvassed a 1931 policy document (at 166–8) which seemed to affirm the approach taken by Chief Protector Cook: see above n 190. But even this policy statement was, in the judge’s eyes, insufficient to show a policy to ‘breed out the colour’: at 166.

[220] Markus, above n 190, 9–10.

[221] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 226.

[222] Ibid 170.

[223] Ibid. On advice from Professor A P Elkin of the University of Sydney, the new Director of Native Affairs was trained in ‘practical anthropology’; the first Director was seconded from New Guinea. Patrol officers attended 12-month courses at the Australian School of Pacific Administration, studying anthropology, linguistics, criminal law and tropical medicine (at 193–4, 367, 336–7). Paradoxically, however, around the same time, the Commonwealth began subsidising missions (with their comparatively untrained staff) to ‘train’ these children in remote places: Garden Point, Melville Island and Croker Island (at 196–8).

[224] Ibid 177–8.

[225] Ibid 453, 507.

[226] Ibid 453. Although there was evidence of communities hiding children from patrol officers (at 233, 340, 360, 375, 417), of their distress at removal (at 174–6, 223, 241–4, 251, 256, 259–61, 355), and of mothers and their husbands loving them like ‘full-blood’ children (at 260, 349, 365, 416), there was other evidence that ‘part-Aboriginal’ children were rejected (and attempts made to kill them at birth (at 288, 291, 407)) and their mothers ostracised (at 205, 208, 350, 417, 454).

[227] Ibid 200, 454, 508.

[228] Ibid 173. Desegregated education of Retta Dixon and St Mary’s children was an ‘innovation’ which ‘eliminate[d] the institution school’ and was ‘calculated to inculcate confidence in the children by their association with European children’: at 271, quoting the 1945–46 report of the Acting Director of Native Affairs.

[229] Ibid 253–5, 261.

[230] Ibid 330.

[231] Ibid 201. According to Cummings, above n 11, 94–5, 98, this program was called the ‘Accommodation for Part-Coloured Children in Other States for Education and Training Scheme’. Under it, children were granted £300 a year per head, and put in southern institutions or foster care. However, the criteria for the children’s selection were vague, and darker-skinned children may not have been selected for fear of prejudice against them.

[232] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 196–8.

[233] Ibid 203.

[234] Patrol officer reports on 1940s and 1950s ‘native camp’ conditions set out ‘a litany of deplorable conditions giving the gravest cause for concern about the well being of the people who had to survive in such circumstances’: ibid 228–9. However, both Banka Banka and Utopia stations seemed to ‘look after’ ‘their’ Aborigines better than others: at 227–8, 254–5, 338.

[235] Ibid 195.

[236] In 1951, the Director advised that patrol officers prepared mothers and ‘tribal husbands’ for the ‘eventual separation’ by ‘educating’ them to hand children over willingly, minimising distress. Mothers could accompany children to Alice Springs or Darwin: ibid 179–80.

[237] The comparative figures were £49 121 spent on the Governor-General and £24 961 on Aboriginal ‘protection’: Commonwealth Bureau of Statistics, Official Year Book of the Commonwealth of Australia (1947) vol 37, 623, 295.

[238] In this period, £74 334 was spent on Aboriginal protection and only £44 747 on the Governor-General: Commonwealth Bureau of Statistics, Official Year Book of the Commonwealth of Australia (1953) vol 39, 324; (1951) vol 38, 775.

[239] In 1954, the Acting Director reported that ‘illegitimate’ children born in towns were removed with their mothers’ consent: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 190–1. Patrol officers reported consent (albeit with arm-twisting) for removals from ‘native camps’: at 192, 207.

[240] The fact that the Hasluck principles contemplated this action by the Director suggests that accepting a voluntary surrender of a child was considered to be within his s 6 powers.

[241] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 185.

[242] Ibid 185–6.

[243] Ibid 458–9.

[244] Ibid 343–4.

[245] Ibid 193–4.

[246] Ibid 194.

[247] Ibid.

[248] Ibid 328–9.

[249] Ibid 342–3, 345–6, 354, 487–8.

[250] Ibid 267–8. This fact gave the Director greater powers over Retta Dixon than over other ‘aboriginal institutions’ — eg, a power to cancel a staff member’s permit to be on a reserve, which an Acting Director did in 1954 when a staff member used excessive corporal punishment on three boys: at 212–13, 272, 307–8.

[251] Ibid 277, 289.

[252] Ibid 316.

[253] Ibid 289, 296.

[254] Ibid 273, 295.

[255] Ibid 289.

[256] Ibid 279.

[257] Ibid 496–7.

[258] Ibid 274.

[259] According to Cummings, above n 11, 80, babies were segregated from their mothers once weaned, and could only be visited during the day, when mothers were likely to be working.

[260] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 317, 323–4.

[261] Ibid 294.

[262] Ibid 269.

[263] Ibid 268.

[264] Ibid 272–3, 277–8.

[265] Ibid 273.

[266] Ibid 272–3.

[267] Ibid 272.

[268] Ibid 269–271, 275–6, 294.

[269] Ibid 282, 297, 299.

[270] Ibid 275, 296–8.

[271] Ibid 283; see also 281–4, 286, 293–4, 296.

[272] Ibid 288–91.

[273] Ibid 327–8.

[274] Ibid 296.

[275] Ibid 289–90.

[276] Ibid 324.

[277] Ibid 294; cf 298.

[278] Ibid 282, 285.

[279] Ibid 209, 318.

[280] Ibid 318.

[281] Ibid 287, 496; cf 294.

[282] Ibid 490–1; cf 284–5, 169, 290, 297.

[283] Ibid 286–8.

[284] Ibid 297.

[285] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. This test requires strong evidence to establish improbably grave facts or serious allegations. His Honour also applied it to the allegations that Mr Gunner was sexually assaulted by St Mary’s staff member Mr Kevin Constable. His Honour applied the higher civil standard of proof despite the fact that neither Mr Walter nor Mr Constable was a party to the action: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 217–18, 320.

[286] On appeal, the Commonwealth contests O’Loughlin J’s findings regarding this assault: Respondent’s Notice of Contentions, Cubillo v Commonwealth (Federal Court of Australia, No D10 of 2000) [8], [13].

[287] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 313–14, 320.

[288] His Honour also found some former Retta Dixon inmates who gave evidence for Mrs Cubillo to be ‘defensive’ and ‘truculent’ on other issues: ibid 284–6.

[289] Ibid 311–14, 320.

[290] Ibid 314.

[291] Ibid 311, 313–14, 320. Walter told the Court, ‘with an air of superior rectitude’, that the Bible teaches that ‘foolishness is bound up in the heart of a child and the rod of correction will drive it far from him’: at 307.

[292] Ibid 307–8, 309–10.

[293] [1959] HCA 8; (1959) 101 CLR 298. The rule allows a judge to draw an inference in relation to witnesses who might be expected to be called but whose failure to be called is unexplained by evidence.

[294] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 218–20, 222, 314, 320–21, 541. Besides any knowledge she may have had of the attack on Lorna Nelson, documentary evidence suggested that Mrs Audrey Walter was present during another incident of excessive corporal punishment by her husband.

[295] Ibid 310–11, 327, 490–1.

[296] Ibid 330, 331–2, 362–3.

[297] Ibid 365–6, 376, 414.

[298] Ibid 332.

[299] Ibid 421.

[300] Ibid 433.

[301] Ibid.

[302] Ibid 431.

[303] Ibid 433.

[304] Ibid 365–7, 426.

[305] Ibid 418, 422.

[306] Ibid 365–6, 423–4.

[307] Ibid 366–7, 420–1.

[308] Ibid 366, 420–1. There was also some evidence of inadequate food and clothing (at 348, 363, 371–3, 377–8, 391, 415–16, 428), but O’Loughlin J did not make findings that these were inadequate.

[309] Ibid 417–21, 424–5.

[310] Ibid 335–6, 422–3.

[311] Ibid 367, 426.

[312] Ibid 428; see generally at 427–30.

[313] Ibid 430.

[314] Ibid 428.

[315] Ibid 430.

[316] Ibid 365, 375–6.

[317] Others who were unable to do so stayed in the hostel or went interstate on holidays organised by the hostel and funded by Welfare Branch: ibid 333, 347–8, 365, 377–8, 412, 416.

[318] Ibid 346–8, 375–7. Peter did try to run away from St Mary’s several times, but the police brought him back: at 373–4.

[319] Ibid 333, 369–70.

[320] Ibid 389.

[321] Ibid 432.

[322] Ibid 433–4; see also at 333, 369–70, 373–4, 378, 380. The children complained to Welfare Branch about some punishments: at 370, 432.

[323] Ibid 333, 374–5, 425.

[324] Ibid 434.

[325] See above n 285.

[326] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 411; cf 377, 409.

[327] Ibid 378–80, 559–60. Gunner’s evidence (denied by Constable (see at 381), and treated by the judge with ‘caution’) was that Constable got into his bed and started ‘mucking around between my legs’: at 378. O’Loughlin J also admitted testimony from four former St Mary’s boys under s 97 of the Evidence Act 1995 (Cth), which permits admission of evidence of ‘the character, reputation or conduct of a person’ (emphasis added), not just that of a litigant. The boys’ evidence related to alleged sexual assaults on them by Constable and/or another male staff member. His Honour was satisfied that there was no possibility the four had concocted their evidence. However, some of it was insufficiently detailed to support findings of impropriety: at 397–401, 406–7. O’Loughlin J declined to admit ‘highly prejudicial’ documents relating to a similar sexual assault charge of which Constable was acquitted in 1964: at 395–6. The Commonwealth vigorously contests his Honour’s findings on this issue on appeal: Respondent’s Notice of Contentions, Gunner v Commonwealth (Federal Court of Australia, No D11 of 2000) [8], [15]–[21].

[328] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 381–2; see also 410–11.

[329] Ibid 410.

[330] Ibid.

[331] Ibid 299–303.

[332] Ibid 305.

[333] Ibid 260.

[334] Ibid 303–5.

[335] Ibid 384.

[336] This is the cousin removed from Utopia with Peter: see below n 352.

[337] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 385–6.

[338] Ibid 384–5.

[339] Ibid 386–7.

[340] Ibid 386–8.

[341] Ibid 565–6.

[342] Ibid 566, quoting W E H Stanner, White Man Got No Dreaming (1979) 230, as reproduced by Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, 356–7.

[343] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 567.

[344] Although the identity of these people is usually initially determined in a land claim by the Land Commissioner, land councils update these lists for land use consultation purposes: ibid 564–5. O’Loughlin J held that any such entitlements could not have fallen due before the applicants reached maturity: at 571.

[345] The Aboriginal Land Commissioner’s Warlmanpa, Warlpiri, Mudbura and Warumungu Land Claim report was approved by the Minister and granted in 1981: ibid 516.

[346] This was the date on which the Minister accepted the recommendations in the 1979 Commissioner’s report on the Alyawarra and Kaititja land claim: ibid 517.

[347] Ibid 566.

[348] As most authors were dead, O’Loughlin J considered all documentary evidence, any contentions raised about it by either party and any other evidence which might lend weight to its acceptance: ibid 150.

[349] See the discussion of ‘missing’ witnesses in below Part IX(A).

[350] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 343.

[351] Ibid 344.

[352] His cousin Florrie Ware was removed to St Mary’s soon after him: ibid 339–43, 353–4.

[353] Ibid 358, 361.

[354] Ibid 361. O’Loughlin J did not suggest that these women could have explained or understood the document which Topsy signed. In my experience, in Aboriginal culture the meaning of such ‘papers’ derives from the ongoing relationship between the parties to them, not from their contents, ‘fixed’ as they are (to the Anglo-Australian mind) in time. This is consistent with ‘relational’ understandings of contract in other non-Western societies.

[355] [1959] HCA 8; (1959) 101 CLR 298.

[356] Cubillo (2000) 174 ALR 218–20.

[357] However, as noted, O’Loughlin J felt comfortable accepting these witnesses’ evidence where he found it more reliable than that of others: ibid 147–9, 559. This allowed him to prefer Cubillo’s and Gunner’s evidence of assaults over Walter’s and Constable’s denials: at 308, 410, 559–60.

[358] Ibid 149.

[359] Ibid 524.

[360] Ibid 327.

[361] Ibid 527.

[362] Ibid 234–6, 241, 248.

[363] Ibid 244.

[364] Ibid 288.

[365] Ibid 321–3.

[366] Ibid 557, 559.

[367] Ibid 559.

[368] Ibid 370.

[369] Ibid 388.

[370] Ibid 389.

[371] Ibid 389.

[372] Ibid 385–6, 356–8, 373–5, 379–80, 382–3, 385, 386, 389–91, 393.

[373] Ibid 392.

[374] Ibid 392.

[375] Ibid 403, 407, 409.

[376] Ie, ss 13 and 16 of the 1918 Ordinance and ss 17 and 20 of the Welfare Ordinance.

[377] Cubillo [No 1] [1999] FCA 518; (1999) 89 FCR 528, 552.

[378] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 435–6.

[379] Ibid 436–7.

[380] Ibid 444–5.

[381] Ibid 437, 444, 447–8.

[382] Ibid 436; see also at 448:

It was reasonable that the Commonwealth would lay out, in legislative form, its policy with respect to Aboriginal and part-Aboriginal people ... and expect its representatives to implement that policy. But when it came to taking a child into custody, that same policy demanded that individual consideration be given to the personal circumstances of each child. ... [T]he legislature was prepared to entrust [that] ultimate decision to its senior public servant in the Native Affairs Branch. The same concept ... can be found in the Welfare Ordinance ... [with] additional protections ... [I]f a person was a ward, it was for the director alone to form the opinion under s 17.

[383] Ibid 446.

[384] Ibid. Thus, if the Director, in removing Lorna Nelson, purported to act under s 6 of the 1918 Ordinance, but acted unlawfully, the Commonwealth was not liable for his acts or omissions. If the Director’s failure subsequently to commit her to Retta Dixon until 1953 exposed the Director to risk, it did not expose the Commonwealth. Since the Director was not involved in Peter Gunner’s removal, these questions did not arise. However, if the Director’s statutory powers were purportedly involved, any action beyond them (eg, the Director’s failure properly to recommit him to St Mary’s in 1957) would not place the Commonwealth at risk: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 449.

[385] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 446.

[386] Ibid 460–1.

[387] Ibid 451. At least, this appears to be his Honour’s conclusion. Elsewhere (at 451), he complained about a Commonwealth submission which

failed to distinguish between the power of the Director of Native Affairs under s 6 of the Aboriginals Ordinance, which included the power of removal and detention, and which was personal to the director and the power of the Director of Welfare to supervise and regulate the use and management of institutions which was not personal to him.

[388] In Aborigines Welfare Board v Saunders [1961] NSWR 917, Walsh J decided that the Aborigines Welfare Board, a statutory authority, was subject to tenancy legislation which did not bind the Crown. The Board was not entitled to the statutory immunity because, as a result of 1940s amendments, it was no longer subject to the general direction and control of the Minister. It acted with a substantial degree of independence, exercising its own discretion. As the Williams litigation indicates, the statutory successor to the Board is the Minister for Aboriginal Land Rights.

[389] See John Fleming, The Law of Torts (9th ed, 1998) 4 and (in respect of public servants) 418.

[390] These were Mr E W P Chinnery (1939–46), Mr Frank Moy (1946–53) and Mr Harry Giese (from 1954). O’Loughlin J’s judgment mentions another five men who held the position of acting Director during this period.

[391] Mr Chinnery and Mr Moy died before the cases commenced. Mr Giese died in February 2000. A former Acting Director, Mr Ted Milliken, who applied to the Administrator for Peter Gunner to be declared an ‘Aboriginal’ (Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 345), gave evidence at trial, but it was not suggested that Mr Milliken exercised the Director’s powers to remove or detain Peter Gunner.

[392] On the approach taken in Kruger [1997] HCA 27; (1997) 190 CLR 1, 134–41 (Gaudron J), the applicable law would seem to be the Law Reform (Miscellaneous Provisions) Act (NT), as picked up by the Judiciary Act 1903 (Cth). See ss 5 and 7 of the NT Act.

[393] See above nn 220, 237.

[394] Geoffrey Sawer, ‘Crown Liability in Tort and the Exercise of Discretions’ (1951) 5 Res Judicatae 14.

[395] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 182, 192–3.

[396] Ibid 450.

[397] Ibid 267, 449, 452.

[398] Ibid 452.

[399] Ibid 452.

[400] Of course, they may have acted as agents of the Directors, not the Commonwealth — a possibility which was not pleaded in these actions.

[401] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 458.

[402] Ibid 452, 458.

[403] Ibid 460.

[404] Ibid 455.

[405] Neither Ordinance specifically provided for or required the making of these orders as part of an exercise of the Director’s detention power.

[406] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 457. The decisions could not be attacked as unreasonable merely because they fulfilled the Ordinance’s purposes or separated parents from children: at 462.

[407] Ibid 459.

[408] Ibid.

[409] Including her detention between July 1947, when she was placed in Retta Dixon Home, and December 1947, when Retta Dixon was declared an ‘aboriginal institution’ under the 1918 Ordinance.

[410] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 460.

[411] Ibid 157, 460.

[412] O’Loughlin J alluded to the possibility that the Director, ‘perhaps merely in a de facto sense, perpetuated his control over Peter and the other wards who were then resident at St Mary’s Hostel by participating with St Mary’s in retaining the children at the hostel’: ibid 489.

[413] Cubillo [No 1] [1999] FCA 518; (1999) 89 FCR 528.

[414] Ibid 557.

[415] Eg, X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 (‘X (Minors)’).

[416] Cubillo [No 1] [1999] FCA 518; (1999) 89 FCR 528, 561.

[417] Ibid 562–3.

[418] See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 465–6.

[419] Ie, to breaches of s 7 of the 1918 Ordinance and/or s 24 of the Welfare Ordinance: ibid 464.

[420] Eg, X (Minors) [1995] UKHL 9; [1995] 2 AC 633; O’Rourke v Camden London Borough Council [1997] UKHL 24; [1998] AC 188; Barrett v Enfield London Borough Council [1998] QB 367. Such an approach was also taken to the Aborigines Act 1969 (NSW) and predecessor legislation by Lee J in Coe v Gordon [1983] 1 NSWLR 419.

[421] An example is the Immigration (Guardianship of Children) Act 1946 (Cth). See above n 99.

[422] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 464.

[423] No doubt it could be argued that the Ordinances imported the common law concept of ‘guardianship’ by their use of the term. However, claims for breach of statutory duty cannot be maintained in relation to duties unspecified by statute. His Honour dismissed claims that the Directors owed ‘guardianship’ duties to take account of various matters when removing children, monitor the institutions and supervise the children in them, and to remove children from inadequate care as a ‘mere repetition’ of many of the Directors’ ‘public’ duties set out elsewhere in the Ordinances: ibid 468.

[424] Ibid 466.

[425] Crimmins [1999] HCA 59; (1999) 200 CLR 1; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180; cf Agar v Hyde [2000] HCA 41; (2000) 173 ALR 665.

[426] After reviewing a range of considerations which might need to be taken into account in deciding whether or not to impose a duty of care, Heydon JA (with whom Spigelman CJ and Sheller JA agreed) stated:

The wide potential impact of imposing a duty of care in the general area under consideration, the difficulty of identifying its content, and the difficulty of administering litigation in which breaches of it are alleged, are ... reasons for delaying any decision to do so until particular circumstances are proved which will result in liability sounding in damages. They have not been proved in this case. ...

Where the law is unsettled but is entering or may shortly enter a state of development, it is undesirable to offer opinions on facts not proved ... [especially] when the circumstances of the case go as far back in time ... as are the circumstances of this case.

Williams [No 2] (Appeal) [2000] Aust Torts Reports 81-578, 64,178.

[427] By contrast, Abadee J declined to impose a duty of care on the state and the successor to the Aborigines Protection Board, primarily because his Honour thought that, because such a duty is not imposed on the parent–child relationship (Hahn v Conley [1971] HCA 56; (1971) 126 CLR 276), it should not be imposed on those acting in loco parentis: Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 107–8, 169, 255, 259–60.

[428] The applicants seem to have pleaded both that the Commonwealth had been negligent, and that it was vicariously responsible for negligence on the part of the Directors: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 435.

[429] Ibid 435, 469.

[430] [1999] HCA 59; (1999) 200 CLR 1, 38–9.

[431] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 481.

[432] It would be unjust to impose a duty of care upon the Commonwealth where it had no statutory power to act nor any power to direct others to act. It had no power, for example, to require that the director place a particular person in an institution... [or] remove a child from an institution.... [A] respondent must be in a position of control and under a statutory obligation, or at least have specific power, to protect the plaintiff from the danger. The Commonwealth did not have that control: nor did it have that power.

Ibid 469–70.

[433] Ibid 482–3.

[434] In Crimmins [1999] HCA 59; (1999) 200 CLR 1, 42, McHugh J referred to his judgment in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, commenting that

one must be very careful about using constructive knowledge in this area ... Speaking generally, I think it is unlikely that a plaintiff could succeed because of the authority’s constructive knowledge of an area of risk, unless it can be said that the defendant authority had an obligation to seek out the requisite knowledge in all the circumstances, including cases where the defendant authority already possesses certain actual knowledge, but fails to look further. It would be a far-reaching step to impose affirmative obligations on a statutory authority merely because it could have or even ought to have known that the plaintiff was, or was a member of a class which was, likely to suffer harm of the relevant kind.

[435] See text accompanying above n 200.

[436] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 470.

[437] A distinction between ‘policy’ decisions on the one hand and those which the courts will subject to a duty of care — operational decisions — was drawn by Lord Wilberforce in Anns v Merton London Borough Council [1977] UKHL 4; [1978] AC 728 and has been applied by the High Court: eg, Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424. Although the courts have allowed claims in tort against governmental bodies since Mersey Docks and Harbour Board Trustees v Gibbs [1865] EngR 610; (1866) 11 HL Cas 443, signs of the ‘policy–operational’ distinction were evident before Anns v Merton London Borough Council: eg, in East Suffolk Rivers Catchment Board v Kent [1940] UKHL 3; [1941] AC 74.

[438] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 481, quoting Mason J in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 469.

[439] See, eg, Commonwealth v Eland (1992) 27 ALD 516, 522.

[440] Although ‘part-Aboriginal’ people could vote for the NT House of Representatives seat from 1922. Lorna’s ‘aboriginal native’ mother could not vote for a representative in federal Parliament: see above n 157 and accompanying text. There was no Legislative Council in the NT until 1947, the year in which Lorna was removed. The law under which she was removed, the 1918 Ordinance, was not the product of a legislature but of the Commonwealth executive arm under s 13 of the Northern Territory (Administration) Act 1910 (Cth), which allowed the Governor-General to make Ordinances. (From 1931, s 21 allowed the Governor-General to make Ordinances and regulations: inserted by s 5 of the Northern Territory (Administration) Act 1931 (Cth).)

Further, even when the Northern Territory (Administration) Act 1947 (Cth) created a Legislative Council, it was constituted by more permanently appointed members than elected members (seven compared with six: s 4B) and its legislative power was curtailed by a requirement that it submit Ordinances ‘relating to aboriginals or aboriginal labour’ to the Governor-General (ss 4U, 4Y). Lorna was still an institutionalised child when the Council passed the 1953 Ordinance, which continued to define her as an ‘aboriginal’. The number of elected members of the Council was expanded to eight in 1959, but so was the number of appointed members who held office at the Governor-General’s pleasure (six ‘official’, three ‘non-official’, both kinds appointed on the Administrator’s nomination): Northern Territory (Administration) Act 1959 (Cth) s 8, amending s 4. Section 4W continued to require the Governor-General to signify his pleasure before an Ordinance ‘relating to, or to the employment of, aboriginals or persons who are wards within the meaning of a law of the Territory relating to the care and maintenance of wards’.

[441] Some Aborigines were still disenfranchised in WA before the enactment of the Electoral Act Amendment Act 1962 (WA); some Aboriginal Queenslanders were disenfranchised before the passage of the Election Acts Amendment Act 1965 (Qld).

[442] See, eg, Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 487.

[443] Ibid 487.

[444] Ibid 484.

[445] Ibid 485.

[446] Ibid 483.

[447] [1995] UKHL 9; (1995) 2 AC 633.

[448] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 478.

[449] Ibid 473–4; see also at 472–3, 478. In cases where the statutory discretion is exceeded, the decision-maker will not be exercising a statutory power but purporting to do so, and the statute is no defence: at 478.

[450] Eg, in Crimmins [1999] HCA 59; (1999) 200 CLR 1, 37 (citation omitted), McHugh J stated:

Recently, ... the distinction has come under attack. A year after X (Minors), a majority of the House of Lords held that the distinction was ‘inadequate’. The Supreme Court of the United States in United States v Gaubert [1991] USSC 49; [499 US 315 (1991)] has also pointed out that almost anything done by a public authority involves discretionary and policy judgments about priorities and resources. In [Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330], two justices of this Court [Toohey J at 358–9, Gummow J at 393–4] expressed the view that the distinction was unhelpful on the facts of that case. Despite these criticisms, there is some support in this country for the distinction, albeit not in the form described in X (Minors). It may be that functions and powers which can be described as part of the ‘core area’ of policy-making, or which are quasi-legislative or regulatory in nature, are not subject to a common law duty of care [his Honour cited Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 469 (Mason J), 500 (Deane J), Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, 393–4 (Gummow J) and Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567, 593–6 (Black CJ, Davies and Sackville JJ)]. Outside this narrowly defined policy exception, however, as Professor Todd has argued, it seems preferable to accommodate the distinction at the breach stage rather than the duty stage [Stephen Todd, ‘Liability in Tort of Public Bodies’ in Nicholas Mullany and Allen Linden (eds), Torts Tomorrow: A Tribute to John Fleming (1998) 36, 46–7].

See also at 101 (Hayne J); Romeo v Conservation Commission (NT) (1998) 192 CLR 431, 484–5 (Hayne J).

[451] [1995] UKHL 9; (1995) 2 AC 633. In this respect, his approach is consistent with decisions of the South Australian courts that have refused to find a duty of care owed by examining doctors and departmental employees to a parent suspected of child sexual abuse: Hillman v Black [1996] SASC 5941; (1996) 67 SASR 490; CLT v Connon [2000] SASC 223; [2000] Aust Torts Reports 81-572.

[452] [1999] HCA 59; (1999) 200 CLR 1, 50.

[453] Ibid 51.

[454] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 485.

[455] [1999] UKHL 25; [1999] 3 All ER 193.

[456] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 474–8.

[457] Recent decisions of the High Court have rejected the usefulness of ‘proximity’ as a control on the category of foreseeable plaintiffs to whom a duty might be owed: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180; Crimmins [1999] HCA 59; (1999) 200 CLR 1. Although there is considerable debate about what has replaced ‘proximity’ (see, eg, Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, 198 (Gaudron J), 210 (McHugh J)), arguably those decisions tended to frame relationships giving rise to duties of care in terms of the plaintiff’s vulnerability and the defendant’s control, factors recognised by O’Loughlin J as being present here.

[458] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 478.

[459] Ibid 492–3.

[460] Ibid 484.

[461] [1997] HCA 27; (1997) 190 CLR 1.

[462] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 495.

[463] Ibid 486–7.

[464] Ibid 484 (quoting Crimmins [1999] HCA 59; (1999) 200 CLR 1, 21).

[465] Ibid 492.

[466] Ibid 554.

[467] Ibid 551.

[468] Ibid 555.

[469] Ibid 451; see also at 488–9.

[470] These are ‘policy’ considerations, but O’Loughlin J’s approach seems to reflect the tendency, where statutory powers other than those of the ‘delicacy’ of child removal powers are involved, to treat ‘considerations of convenience, discretion and budgetary allocation ... [as] matters appropriately considered as part of the breach question’: Crimmins [1999] HCA 59; (1999) 200 CLR 1, 42 (McHugh J).

[471] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 497.

[472] Ibid 489.

[473] Ibid 490.

[474] O’Loughlin J said that he had not overlooked these concerns, but they cannot have figured prominently in his Honour’s assessment of the Director’s knowledge of the risk: ibid.

[475] See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

[476] See the comments of McHugh J on constructive knowledge in Crimmins [1999] HCA 59; (1999) 200 CLR 1, 30 in above n 434.

[477] There is an argument that social concern about child abuse comes in waves, and that sexual abuse is the last type of abuse to receive attention. Although 19th century physicians had considerable evidence that parents sexually abused their children, and Freud initially theorised that such abuse was widespread, the extent of child sexual abuse was really ‘rediscovered’ in the 1980s: see C H Kempe, ‘Recent Developments in the Field of Child Abuse’ (1979) 3 Child Abuse and Neglect 9, cited in Peter Reder, Sylvia Duncan and Moira Gray, Beyond Blame: Child Abuse Tragedies Revisited (1993) 9.

[478] By contrast, other sources seem to indicate that some ‘missionaries’ engaged in sex with adult Aboriginal women (see the references in above n 209), and there was some awareness of the risk of sexual assaults by Aboriginal parents on their children: see the unreported judgment of the Supreme Court of the NT, handed down by Kriewaldt J on 23 May 1957 (copy on file with author).

[479] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 212–13.

[480] Ross (Unreported, Supreme Court of the NT, Kriewaldt J, 5 April 1956): see above n 97. The pastoralists had been convicted of assaulting the Aborigines in R v Chambers (Unreported, Supreme Court of the NT, Kriewaldt J, 15 December 1955). In Ross, Kriewaldt J ordered that a writ issued in the Aborigines’ names by Director Giese as their next friend be amended, because ‘guardianship’ of an adult ‘aboriginal’ under s 7 of the 1918 Ordinance did not prevent the ‘aboriginal’ suing in his own name.

[481] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 248, 360, 487.

[482] Ibid 561–2. O’Loughlin J was prepared, contrary to his own observations of her, to accept a report by Mrs Cubillo’s examining psychiatrist, Dr Gibney, that she was a non-assertive person of low self-esteem who felt guilty about ‘betraying’ those who cared for her in the home: at 516. He accepted Dr Gibney’s assessment that she suffered depression and a post-traumatic stress disorder of increasing severity, caused by the childhood incidents and exacerbated by other life events: at 547–8, 551. Dr Gibney considered she needed continuing counselling: at 547–8. His views were partly supported by another psychiatrist’s report, but this doctor regarded Mrs Cubillo as largely recovered: at 548–9.

Two psychiatrists — one (Dr Waters) a child specialist — reported that Mr Gunner suffered chronic dysthymic disorder or chronic depression, separation anxiety disorder and post-traumatic stress disorder: at 552, 557. Both believed his removal and detention were catalysts for his condition: at 560. O’Loughlin J agreed he presented as depressed: at 556. Dr Waters, who ‘could not remember seeing a man who seemed “so beaten as Peter Gunner”’ recommended intensive counselling and anti-depressant medication: at 556, 557. He noted at 557 that Gunner told him he was not ‘regarded well’ at Utopia: ‘People [often] say to me, you have no say in the land here. You’re a half-breed, a white man.’ O’Loughlin J found that Gunner’s long belief that his mother tried to kill him as a baby would have been ‘a very major shock’, even to an adult: at 557–8.

The Commonwealth took issue with the factual bases of some of the applicants’ psychiatric evidence. In Mrs Cubillo’s case, O’Loughlin J regarded only one of these ‘discrepancies’ as important: at 551. In Mr Gunner’s, there were many, showing ‘the frailty of human memory’ (at 553) and reinforcing that he was ‘a very poor witness’: at 559. However, these were ‘not sufficient to shake [the psychiatrists’] opinions and their conclusions’: at 560.

[483] Ibid 552.

[484] Ibid 488.

[485] Ibid 489, 496.

[486] Ibid 573.

[487] See Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501.

[488] Mrs Cubillo had a strong work ethic, improving her skills and employment: Cubillo [2000] FCA 1084; (2000) 174 ALR 97 323–4. However, she married a gambler who drank, assaulted her and relied on her economically. They ‘lost everything’ in Cyclone Tracy. She suffered chronic minor illnesses, cancer, ulcers, arthritis, workplace injury and depression; she attempted suicide. Three of her six children had trouble with the law and one suffered an intellectual disability. She was left to care for grandchildren. O’Loughlin J thought her ‘exclusive sense of grievance against the Commonwealth’ stemmed from the fact that ‘a person who has suffered such hardship and misery would lash out in search of those responsible’: at 324–8.

[489] Ibid 564–7. Such an approach impliedly rejects an argument that such damage was not foreseeable 20 years before this legislation was enacted.

[490] Ibid 568.

[491] Ibid 560–1.

[492] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 561, 578–81. His Honour held that the Briginshaw standard would need to be met in relation to such allegations: see the discussion of this standard in above n 285. However, ‘[t]here was no evidence whatsoever in either case that remotely suggested mala fides or recklessness on the part of either director at any time’: at 561

[493] Ibid 574, 577.

[494] Ibid 575.

[495] Ibid 576.

[496] Ibid 575.

[497] Ibid.

[498] Ibid 573.

[499] Ibid 575.

[500] Ibid 576.

[501] Ibid 577.

[502] Ibid 571.

[503] Ibid 564, applying Napaluma v Baker (1982) 29 SASR 192, Dixon v Davies (1982) 17 NTR 31, Weston v Woodroffe (1985) 36 NTR 34 and the approach of von Doussa J to damages for breach of copyright in Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1994) 54 FCR 240.

[504] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 569.

[505] Ibid 571.

[506] Ibid 570–1.

[507] Ibid 569:

[She] has not proved... that she [wishes] to return to an Aboriginal lifestyle. That lifestyle was taken from her against her will; that sounds in damages. She was kept away from that lifestyle while ... detained ... and that sounds in damages. But at some stage in her adult life ... she could have started exploring the possibilities of regaining something of what she has lost. Her failure to do so does not support her claim that she suffers an ongoing sense of loss about her former Aboriginal life and culture.

[508] Ibid 568, 575–6.

[509] Ibid 569.

[510] Land councils may keep registers of ‘traditional Aboriginal owners’ for Aboriginal land under s 24 of the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth).

[511] Section 3(1) relevantly provides:

In this Act, unless the contrary intention appears: ...

traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who:

(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b) are entitled by Aboriginal tradition to forage as of right over that land.

[512] The Land Commissioner’s function is, on receiving a land claim to appropriate land, to ascertain whether or not there are ‘traditional Aboriginal owners’ of the land, and, if there are, to make recommendations to the Commonwealth Minister for Aboriginal Affairs regarding grant of the land: Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) s 50(1).

[513] The functions of land councils include preparation of land claims and management of Aboriginal land by reference to the wishes of ‘traditional Aboriginal owners’ and the views of other Aboriginal people: Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) s 23.

[514] See, eg, the approach taken by Olney J in the Kenbi land claim to land on Darwin harbour, overturned on appeal in Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470. Olney J determined that the expression ‘local descent group’ in s 3(1) meant a patrilineal clan — ie, a group in which land ownership was inherited from one’s father and father’s father. On this interpretation, people with white fathers had no rights to land. This was a view expressed by some witnesses before O’Loughlin J: eg, Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 567.

[515] Eg, payments under ss 15, 16, 19 or 20, paid to traditional Aboriginal owners under s 35(4).

[516] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 568.

[517] Ibid 571.

[518] Ibid 577.

[519] See Ellen Connolly, ‘Strapped for Cash: Man Gets $2.5m for a 1984 Caning’, Sydney Morning Herald (Sydney), 15 February 2001, 1.

[520] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 573.

[521] Ibid 501. Such a relationship was said at 498–9 to arise

because of the role and functions of the Commonwealth’s servants and agents in the removal and detention of the applicants and because of the Commonwealth’s powers over, and its assumption of responsibility for, Aboriginal people in the Northern Territory[,] ... the powers, obligations and discretions of the Directors and the vulnerability of each applicant to the exercise of those powers and discretions[,] ... the powers, obligations and discretions of the Administrator and the obligation on the Administrator to administer the Northern Territory on behalf of the Commonwealth and in accordance with the instructions of the relevant Commonwealth Minister.

See also at 499–500, 506.

[522] Ibid 499.

[523] Ibid 500.

[524] Ibid.

[525] Ibid.

[526] [1998] FCA 1711; (1998) 90 FCR 489.

[527] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 503.

[528] Ibid 504–5, citing Breen v Williams (1996) 186 CLR 71.

[529] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 506, 497.

[530] Ibid 508. This is consistent with the approach taken by Abadee J in Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 231–43.

[531] [1992] HCA 27; (1992) 176 CLR 408 (‘Bennett’). See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 502–3.

[532] Section 10 of the Child Welfare Act 1947 (WA).

[533] This was a case concerned with economic interests. In Nicholson J’s words at trial, ‘The right to bring an action in negligence was ... part of the property of the plaintiff to which the Director’s care, custody and control extended’: Bennett v Minister for Community Welfare [1988] Aust Torts Reports 80-210, 68,084, 68,090.

[534] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 503.

[535] Interestingly, in Williams [No 2] (Trial) [1999] NSWSC 843; (1999) 25 Fam LR 86, 234–5, Abadee J thought the absence of a statutory guardianship provision in the Aborigines Protection Act 1909 (NSW) (including as amended after 1940) could be significant for the question of whether the Aborigines Protection Board had stood in a fiduciary relationship to the plaintiff. The absence of a guardianship provision was significant especially because there was such a provision in the Child Welfare Act 1939 (NSW).

[536] During the interlocutory proceedings, a Commonwealth solicitor deposed that 41 of 50 people referred to by Mrs Cubillo in her pleadings and witness statement, and 33 of the 70 referred to by Mr Gunner, were dead: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 535. The Commonwealth sought to persuade the Court that the evidence of a further 33 deceased persons might have been relevant to Mrs Cubillo’s claim and that of a further 36 to Mr Gunner’s. These people included seven former Prime Ministers: at 536.

[537] There was evidence of Mr Giese’s condition: ibid 535.

[538] Ibid 541.

[539] Ibid 338–9, 342.

[540] Ibid 349, 351.

[541] Ibid 537. These people included four former patrol officers: at 328, 537, 538. The applicants had not shown what evidence these former officers might have added, or what they might have known about their cases. In any event, it was open to the applicants to call them: at 537–8. The same was true of four former institutional inmates whose existence was known to the applicants: at 541. Similarly, there was no need for the Commonwealth to call another alleged Retta Dixon ‘basher’, Mr Stanley Matthews, and his wife: at 538. And the evidence of a former St Mary’s house-mother between 1957 and 1960 was not ‘of critical importance’ given the availability of detailed Welfare Branch reports on the hostel: at 541.

[542] Ibid 539.

[543] Ibid 540.

[544] Commonwealth, Senate, Legal and Constitutional References Committee, 12 July 2000, 166–80. At the time of giving this evidence, Mr Marsh was 94 years old.

[545] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 540.

[546] Cubillo [No 1] [1999] FCA 518; (1999) 89 FCR 528.

[547] Ibid 599.

[548] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 509.

[549] Ibid 515.

[550] Ibid 517.

[551] Ibid 513.

[552] Ibid 515. NT limitation law was held to apply to a similar claim by operation of the Judiciary Act 1903 (Cth) in Kruger [1997] HCA 27; (1997) 190 CLR 1, 134–41 (Gaudron J).

[553] See Cubillo [No 1] [1999] FCA 518; (1999) 89 FCR 528, 584.

[554] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 515–16.

[555] Ibid 517.

[556] Ibid 516.

[557] Ibid 517.

[558] Ibid 516.

[559] Ibid.

[560] Ibid 517–18.

[561] See ibid 509–10.

[562] Ibid 510.

[563] Ibid 510–11.

[564] Ibid 511, 513.

[565] Ibid 117.

[566] Ibid 527–8. Such facts need not complete a cause of action or have a bearing on a party’s decision to commence proceedings — they need only be ‘of sufficient importance to be likely to have a bearing on the case’, including the quantum of damages: Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628. See also ibid 520–1.

[567] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 518–19. There was a similar problem with Mrs Cubillo’s statement of claim: it was filed just two days after Mrs Cubillo received her psychiatrist’s report and alleged that she suffered from a disorder not mentioned in the report: at 528.

[568] (1989) 66 NTR 20.

[569] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 519 (emphasis added).

[570] Ibid 520.

[571] Ibid 547.

[572] Ibid 521–2, 528, 534.

[573] Ibid 527.

[574] This book was Cummings, above n 11.

[575] O’Loughlin J did not accept that she had not understood that a purpose of the conference was to make people like her aware of proposed legal action: Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 524, 526.

[576] Ibid 524–7.

[577] [1996] HCA 25; (1996) 186 CLR 541.

[578] See Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 528–33.

[579] Ibid 535.

[580] Ibid 533.

[581] Ibid 534.

[582] Ibid 537.

[583] Ibid 536.

[584] Ibid.

[585] Ibid 535, 537.

[586] Ibid 536.

[587] Ibid 461, 537.

[588] See text accompanying above n 542.

[589] Ibid 540. O’Loughlin J also rejected the notion that the Commonwealth was prejudiced by not being able to call oral evidence to support or supplement written policy documents: ‘The thought that [important] matters ... [of] policy ... were not committed to writing has little or no appeal’; oral evidence about the meaning of a written document is not normally admissible: at 541.

[590] Ibid 542.

[591] Ibid 542, 543.

[592] Ibid 543. By contrast, the Commonwealth had not been embarrassed in the preparation of its defence to the accusations against Mr Walter and Mr Constable.

[593] Ibid 543–4.

[594] Ibid 547.

[595] Ibid 509; see also at 545.

[596] Ibid 544–6.

[597] Ibid 544-5.

[598] Ibid 546.

[599] Ibid 545-6.

[600] Ibid 546.

[601] Ibid.

[602] Cubillo [No 1] [1999] FCA 518; (1999) 89 FCR 528, 529.

[603] HREOC, above n 5.

[**] Faculty of Law, Australian National University. Thanks to the editors for their persistence and hard work, Helen Donovan, Angeline Baker and Sonia Burrows for research assistance, the two anonymous referees and Peter Cane for comments and suggestions, and Jim Davis, Peta Spender, Jilpia Jones, John Thompson, Jennifer Norberry, John Seymour and Fiona Wheeler for answers to particular questions. Thanks also to Gordon Briscoe for spending years humbugging me about the complicated nature of miscegenation in central Australia. Special thanks to Ken and Vivien for their patience and support.