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Clarke, Jennifer --- "Commonwealth Not Liable: Cubillo and Gunner v Commonwealth" [2000] IndigLawB 57; (2000) 5(2) Indigenous Law Bulletin 11

Commonwealth Not Liable:

Cubillo and Gunner v Commonwealth

Cubillo and Gunner v Commonwealth

Federal Court of Australia

(2000) 174 ALR 97-584

Justice O’Loughlin

11 August 2000

By Jennifer Clarke

1. 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 Aboriginal families as children and their detention in mission-run institutions. They claimed damages for psychiatric injuries, loss of Aboriginal culture and rights under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and exemplary and aggravated damages due to the Commonwealth’s ‘disregard’ for their welfare under a general policy of taking ‘half-caste’ children.

Mrs Cubillo was removed in 1947, aged 8, from Phillip Creek Native Settlement near Tennant Creek, run for the Native Affairs Department by the interdenominational Aborigines Inland Mission (AIM). She was detained in AIM’s Retta Dixon home, Darwin, until she was 18. Mr Gunner was taken from Utopia station in Central Australia in 1956, aged 7. He was put in St Mary’s hostel, Alice Springs, run by the Anglican Church’s Australian Board of Missions (ABM). Both Cubillo and Gunner alleged they had been seriously assaulted by institutional staff.

2. Why the case failed

There were four main reasons for the litigation’s failure:

1. The evidence. In most causes of action, the onus of showing that the removals, detentions or other exercises of statutory power were unlawful lay with the applicants. They failed to discharge it - sometimes because there was no evidence (e.g. of Mrs Cubillo’s removal), sometimes because the evidence was against them (e.g. on the nature of Commonwealth policy). On some issues, the judge regarded their own evidence as ‘unimpressive’. Mr Gunner also failed to call some important witnesses.

2. The legislation. The ‘protection’ and ‘welfare’ laws allowed them to be removed without parental consent. They allowed them to be detained for reasons besides their own welfare.

3. The ‘tyranny of time’. Too many people who dealt with their cases had died; others were old and frail. No records relating to Mrs Cubillo’s removal could be found. This meant‘overwhelming’ prejudice to the Commonwealth, making a fair trial impossible. For this reason, the judge declined to let the applicants bring their cases 25-35 years late.

4. Wrong defendant. Justice O’Loughlin found the Commonwealth was not responsible for what happened to Cubillo and Gunner - it was done by ‘independent’ officials and missions, who were not sued. On the evidence, the officials had not known of the assaults. Where they could be held responsible (eg for poor conditions at St Mary’s), Mr Gunner could not show he had suffered as a result.

The judge also decided that the courts should not impose civil liability on official decisions to remove and detain ‘part-Aboriginal’ children under the NT ‘protection’ and ‘welfare’ laws, but that they could impose civil liability for defective supervision of institutions.

3. The Directors, the applicants and the institutions

Mrs Cubillo was removed under the Aboriginals Ordinance 1918 (NT). It made a Director of Native Affairs guardian of every ‘aboriginal’ and ‘half-caste’ child (s 7). The Director could remove them if ‘necessary or desirable in [their] interests’ (s 6), and detain them in approved institutions (s 16). Although a child’s interests were the ‘dominant consideration’ under the detention power, the Director could also take account of the interests of their family and ‘the community generally’. Native Affairs ‘patrol officers’ were involved in removing children.

The Commonwealth provided missions with substantial funds to run institutions. The NT Administrator approved institutions and appointed their superintendents. The Ordinance placed inmates under the superintendent’s control (s 13). The Director was required to oversee institutions, ensuring they maintained appropriate standards (s 5). If unsatisfied with conditions, he could have removed children or had the Administrator revoke the institution’s status.

Justice O’Loughlin found that a patrol officer, the Director’s delegate, was involved in removing Mrs Cubillo as part of a ‘joint exercise’ with AIM involving Retta Dixon superintendent, Miss Shankelton. There were no documentary records of the removal. Of all Native Affairs and AIM staff involved, only the patrol officer was alive. This made it impossible for Justice O’Loughlin to tell whether the Director had purported to use his s 6 power to remove Mrs Cubillo. There was no evidence of him exercising his s 16 power to detain her in Retta Dixon at this time.

The Ordinance was amended in 1953 so that it did not apply to ‘part-Aborigines’ except institutionalised children, people who ‘lived like’ ‘aboriginals’ and people deemed ‘aboriginals’. So that Mrs Cubillo remained subject to his powers, the Director formally committed her to Retta Dixon under s 16 before the amendments commenced. She left after this order expired, in 1956.

Peter Gunner was removed under the amended Ordinance. He lived in a ‘native camp’, but the Director deemed him an ‘aboriginal’ (the judge held) at his mother’s request. Justice O’Loughlin found he was taken by a patrol officer at his mother’s request, as evidenced by her thumbprint on a ‘consent’ form. This meant the Director’s s 6 power was not used, although he used his s 16 power to commit Peter to St Mary’s until his 18th birthday.

By the 1950s, the Commonwealth was subsidising 90 per cent of the institutions’ costs.

In 1957, the Welfare Ordinance 1953 replaced the Aboriginals Ordinance. It allowed a Director of Welfare to take into custody or detain in institutions (s 17) Aborigines declared ‘wards’ (s 14) because of their manner of living, inability to manage their affairs, social habits or behaviour or personal associations.[1] The Director remained their guardian (s 24). His duties included supervision of institutions (s 8).

Peter Gunner remained in St Mary’s after 1957. The Director declared him a ‘ward’, but there was no evidence of an exercise of s 17 power to recommit him. He left in 1962, aged 14, for station work arranged by Welfare Branch.

4. Commonwealth policy and the applicants

Cubillo and Gunner argued that decisions to remove them were made pursuant to a ‘blanket’ policy of removing all ‘half-caste’ children of white men which pursued four unlawful purposes: (i) destruction of family and cultural associations, (ii) assimilation into white society, (iii) provision of domestic and manual labour for Europeans and (iv) a desire to ‘breed out “half-castes”’ and protect the primacy of the Anglo-Saxon community.

Justice O’Loughlin agreed that Commonwealth policy had pursued ‘“assimilation” in the sense of integration’. However, this was lawful because ‘prompted by... a sense of responsibility for the ... children and concern for their welfare as potentially unwelcome members of the Aboriginal community’. (There was evidence of families hiding children from patrol officers and expressing distress at their removal, but there was other evidence of mothers and communities rejecting ‘half-caste’ children and attempting to kill them at birth. Conditions in ‘native camps’ were ‘deplorable’.) There had always been a policy of removing ‘neglected’ children. Justice O’Loughlin found destruction of family and cultural links was a consequence, not a purpose, of Commonwealth policy He found no evidence of the third or fourth purposes after World War II. A post-war ‘perceptible change in attitude’ led the Commonwealth to introduce desegregated education for ‘part-Aboriginal’ children.

His Honour found no ‘blanket’ removal policy applied in the 1940s and 50s; it was beyond the Commonwealth’s and the missions’ capabilities to implement one. There was no evidence of the number of ‘part-Aboriginal’ children in the Territory at any time, nor of their paternity in racial terms. However, there were Commonwealth statistics of numbers removed and in schools and institutions. These suggested to the judge that the number of removals in the 40s and 50s was ‘very low’ and forcible separations ‘rare’; the number of institutionalised children dropped after the Welfare Ordinance commenced. The judge found removals were effected in children’s ‘best interests’ (mainly for education), but took no account of their interests in family and culture, and did not require parental consent. However, by the 1950s, they required detailed consideration of a child’s circumstances. After 1957, patrol officers sought evidence of consent by thumbprints on standard forms.

Mrs Cubillo had not shown that she had been in an adult’s care when removed: her mother was dead, she regarded her aunt as her mother; it was not clear whether her grandmother was alive. AIM may have treated her as an orphan. There was evidence that Mr Gunner’s mother rejected him as a baby, but the judge found that she and the Utopia community accepted him by 1956. Nonetheless, Justice O’Loughlin found his mother gave informed consent to him being placed in the Director’s care for education.

5. The homes and assaults

(a) Retta Dixon Home

1940s and 50s conditions needed ‘substantial improvement’. Children lived in ex-army hut dormitories; the home was crowded, but Justice O’Loughlin found this did not affect Mrs Cubillo. Children attended ordinary schools; some went home for holidays and received relatives, but Mrs Cubillo and 15 other Phillip Creek children were not visited. Despite evidence that older girls’ emotional needs were not met, Mrs Cubillo and others visited and corresponded with Miss Shankelton after they left the home. Justice O’Loughlin attributed Mrs Cubillo’s feelings of being unloved to her ‘personality and character’. Corporal punishment was ‘severe’ on today’s standards, but did not involve ‘flogging’. An exception occurred when Mrs Cubillo was ‘thrashed in a rage’ by Mr Des Walter with his belt buckle. The judge found that Walter was also involved in an incident in a car alone with her when he put his hand on her thigh and made her cry.

(b) St Mary’s Hostel

St Mary’s accommodated ‘part-Aboriginal’ children attending local schools, some placed by parents, in ex-army dormitories. The evidence was ‘a damning indictment of St Mary’s’. Its physical conditions were inferior on standards of the day. Management when Gunner arrived was incompetent: staff lacked qualifications, did not manage health properly and did not keep records. Criticism from welfare officers, the Director and Administrator led the Minister to threaten withdrawal of funding. Management improved with a change of wardens in 1959, but lapsed when they left in 1961. Nonetheless, Welfare Branch kept admitting children.

Some children went home for holidays, but ‘mysteriously’ Peter did not, although the patrol officer had promised that he would. His mother did not visit him, although she was permitted to do so. Gunner was punished ‘severely’ but not excessively on the standards of the day. Although his education was ineffective, the judge found he was unaffected by poor health management.

The judge found that there was sexual misconduct by staff member Mr Kevin Constable, including against Gunner.[2] Constable admitted ‘cleaning’ boys’ penises with glycerine to ‘soften the smegma’ for ‘hygiene reasons’, and applying an unprescribed salve to a boy’s partly erect penis. Justice O’Loughlin found the first ‘grossly improper’ and the second ‘perverted’; he could not accept that ‘a responsible carer of adolescent boys’ would do this, even 40 or 50 years ago.

6. The evidence

His Honour applied the Briginshaw[3] test - which requires strong evidence to establish improbably serious allegations - to allegations that the Commonwealth removed the applicants without good cause and to the assaults. He applied Jones v Dunkel[4] to infer that the evidence of seven missing witnesses would not have assisted the party expected to call them. These included Mr Walter’s wife and Mr Gunner’s five aunts and his cousin, who may have seen him removed.

His Honour regarded some of the applicants’ evidence as unreliable: ‘I am concerned about their ability to recall... events... so many years ago when they were small children’ without ‘unconsciously engag[ing] in... reconstruction’. Mr Gunner was easily confused and often contradicted himself. Mrs Cubillo created an unfavourable impression under cross-examination by giving defensive or ‘rambling’ replies. However, the judge felt comfortable preferring their evidence of assaults over Walter and Constable’s denials.

7. Causes of action

(a) Standards of the day and onus of proof

Justice O’Loughlin assessed the lawfulness of Commonwealth policy and Directors’ actions on the standards of 1940s and 50s ‘misguided paternalism’. In all causes of action except false imprisonment, the applicants bore the onus of showing that Directors failed to exercise their powers lawfully. They failed to do so. They did not prove that Commonwealth policy dictated how Directors exercised their s 6 and 16 powers. There was no evidence at all on which to base conclusions about the exercise of s 6 power in Mrs Cubillo’s case. In Mr Gunner’s case, although the evidence showed the s 6 power was not invoked, it also showed that the Director (through his staff) had given Peter’s interests detailed consideration. The applicants had not shown that their committal orders were beyond the Director’s s 16 powers. Mr Gunner had not shown that the Director had not exercised his s 17 Welfare Ordinance power to detain him after 1957.

(b) Vicarious liability

Justice O’Loughlin held the Commonwealth not liable for actions of the Directors or missions. The Director’s removal power (and, apparently, his detention power) was an independent statutory discretion turning on his opinion as to the child’s interests, not that of the Administrator or Minister. The Director bore responsibility for any torts committed in its exercise. Commonwealth vicarious liability might arise only if a Director acted outside his powers. Similarly, the Commonwealth was not responsible for Directors’ failure to supervise the institutions. Those duties were cast on the Directors and did not permit interference by the Administrator, the Minister or the Commonwealth.

Neither were the missions Commonwealth agents. Both operated independently of the Directors by receiving children placed by parents, over whom their ‘substantially independent’ superintendents’ statutory control extended. Only the Director was empowered to bring back absconding Native Affairs or Welfare children - the missions had no delegated power to do so.

(c) False imprisonment

Justice O’Loughlin found the Commonwealth did not ‘promote or cause’ the applicants’ detention.

It was sufficient for the applicants to show imprisonment; a respondent carried the burden of proving it was lawful. The Directors’ detention powers were broad. The committal orders were in evidence unchallenged. Thus the decisions to detain them were not impeached. However, the Commonwealth had not proven that the Director’s removal of Mrs Cubillo was an exercise of his s 6 powers. She might, therefore, have a cause of action against the estates of former Director Moy or Miss Shankelton, the patrol officer or AIM for false imprisonment. Although it is not clear, the judge seems to reach a similar conclusion about Mr Gunner: he may have an action against former Director Giese, St Mary’s, its superintendent and ABM if it cannot be shown that Mr Giese recommitted him to St Mary’s under s 17 Welfare Ordinance.

(d) Statutory duty

The applicants do not seem to have argued that Directors breached their ‘public’ duties to supervise the institutions. They withdrew allegations that Directors breached ‘public’ duties to care for ‘aboriginals’ generally. Instead, they argued that Directors breached statutory duties owed to them as their guardians. Justice O’Loughlin rejected this argument: neither Ordinance spelled out guardianship duties. He treated the Ordinances as not creating private rights to compensation for their breach.

(e) Duty of care

Justice O’Loughlin concluded that no common law duty should be superimposed on the Directors’ removal (and, presumably, detention) powers. Conduct within ‘the delicate [policy] sphere of child protection legislation’ (taking a child into care) was not actionable because the courts were ill-equipped to deal with such questions and their intervention might have made Directors unduly cautious in discharging their duties.[5]

A child’s treatment in care was also different.[6] The Directors’ relationship with the children was like that of parent to child. The law imposes on parents criminal sanctions for physical or sexual abuse of children or welfare consequences for their neglect. Thus the Director owed the applicants a duty of care in the exercise of his supervisory powers, to ensure that conditions in the homes were adequate.

However, the Commonwealth owed them no duty of care: it did not injure them, it did not enjoy the power of removal or detention; its capacity to intervene was limited to legislative change, withdrawal of funding and formulation of general policies. The plaintiffs were vulnerable, but it had not been shown that the Commonwealth knew of the risk of harm to them.[7]

Did the Directors breach their duty of care to Cubillo or Gunner? The Director was in breach by allowing conditions at St Mary’s to become bad without removing children. However, leaving aside the assault, Justice O’Loughlin did not believe Mr Gunner suffered damage as a result. Like Mrs Cubillo, his losses stemmed from his initial removal and detention, not from home conditions. And Justice O’Loughlin concluded that not even the assaults placed the Director in breach of duty: the Director did not know of them; there was no suggestion that he should have known of the assailants’ propensity to commit them.[8]

Cubillo or Gunner might have negligence actions against AIM or ABM, or actions (presumably in assault?) against Walter or Constable (or, vicariously, their employers). But the Directors were not vicariously responsible for mission staff because they did not select them.

(f) Fiduciary obligations

Justice O’Loughlin regarded it as ‘inappropriate’ for him (as a trial judge) to extend the categories of fiduciary relationship so that they protected non-economic interests and overlapped with tort law.[9] The High Court had distanced itself from such an approach.[10] The applicants’ losses were not economic - they flowed from psychiatric injuries and cultural losses; the same material was used to ground their tort and fiduciary claims. The evidence did not suggest breaches.

(g) Damages

In case he was overruled on the law, Justice O’Loughlin assessed notional general damages for each applicant. He found no evidence of Commonwealth bad faith or indifference to justify exemplary or aggravated damages.

Any damages would flow from the trauma of the children’s removal and initial detention. They would not recover from psychiatric injuries suffered then. While notional damages took account of conditions in the homes, including the assaults, these were not a significant factor. Other factors included the Commonwealth’s failure to acknowledge its wrongdoing and apologise.

Cultural losses began to diminish when the applicants were able to find their way home as adults. They were then under a duty to mitigate these losses. Mrs Cubillo had not done so - despite finding her family in 1955, she had rarely visited them and ‘made no attempt to change her lifestyle’. Mr Gunner had gone back to live at Utopia, but could have done so earlier. The evidence showed he could have undergone adult initiation, which he had not done.

As to losses incurred by not being recognised as ‘traditional Aboriginal owners’ under the Land Rights Act, Mr Gunner had recently been recognised, and Mrs Cubillo appeared not to have asserted her rights. (It seems Justice O’Loughlin regarded her as not discharging a duty to mitigate in this area also.) Finally, Justice O’Loughlin made no deduction for ‘benefits’ the applicants ‘acquired’ due to their removal.

He would have awarded Cubillo $110,000 plus $16,800 interest, Gunner $125,000 plus $19,100.

8. Limitations and laches

A large number of people with possible knowledge of the removals and detentions were deceased at trial. Former Director Harry Giese was too ill to give evidence. The evidence of a former Utopia station owner and the patrol officer who removed Mr Gunner was clouded by age or time.

Mrs Cubillo’s actions in false imprisonment, and negligence and breach of statutory duty arising out of her psychiatric injuries, accrued when she turned 21; the limitation periods expired in 1962 (or 1965). The parallel date in Mr Gunner’s case was 1972 (1975).[11] Cultural loss was also sustained before the applicants’ majority. Any losses of land rights occurred when the first grants of land in which they might have had traditional ownership were made - in her case, in 1981; in his, 1979 - so that these limitation periods expired in the early 1980s.

The applicants were entitled to ask for an extension of time: they had ascertained ‘material facts’ within 12 months after (ie, either before, or up to 12 months after)[12] commencing proceedings, as required by s 44 Limitation Act 1981 (NT). Proceedings were commenced in October 1996; they had been appraised of their psychiatric injuries around the same time.

But Justice O’Loughlin declined to exercise his discretion to extend time under s 44. Prejudice to the Commonwealth due to witnesses’ deaths and absence of documentary records was ‘overwhelming’; a fair trial was not possible. Miss Shankelton’s death left a ‘huge gap’, as did that of former Director Moy and his acting Director McCaffrey, and the absence of Mr Giese. In Mr Gunner’s case, the patrol officer and station owner’s defective evidence also had a potentially adverse effect on the Commonwealth’s defence. Justice O’Loughlin barred the applicants’ claims for equitable relief on similar grounds.

9. The future

Justice O’Loughlin’s decision is under appeal.

Although his Honour suggested that Cubillo or Gunner could sue (the estates of) former Directors or superintendents or the missions for false imprisonment (in her case, before 1953, in his, after 1957) or negligence, loss of witnesses or records might make it difficult to obtain an extension of time against these parties. The prospects of an extension in an assault case against Walter or Constable might be better, as they are alive to defend themselves.

It seems unlikely that these men could be successfully prosecuted for criminal assault. Although Constable admitted touching the boys, his conduct may not have constituted sexual assault in the 1950s. Justice O’Loughlin’s finding that his conduct was unacceptable on standards of the day is on the civil standard. It may be that it is more difficult to prove its ‘indecency’ on the criminal standard, given 1950s notions about ‘sexual hygiene’ and circumcision.

The judge acknowledged that Commonwealth pre-war policy may have been influenced by eugenics. But even if it was, it would need to have led Directors to act outside their broad statutory powers before the courts will impose civil liability for removals and detentions. Evidence about these pre-war removals may be more difficult to find than evidence of Mrs Cubillo’s removal. Judges will be very unwilling to lift the limitations bar in cases more than 60 years old.

Finally, statistics relied on by Justice O’Loughlin suggest that around 100 children were ‘removed’ between 1946-57, although there were about 400 in institutions in the 1950s. No doubt some were put there because they were ‘neglected’. Were the others institutionalised by ‘consent’? Given Aboriginal life expectancy, ‘consenting’ parents may have predeceased removing officials. Deprived of these witnesses, judges must rely heavily on documentary evidence, which is unlikely to have recorded a complete Aboriginal perspective on these events.

Jennifer Clarke is a lecturer in the Law Faculty, Australian National University. Thanks to Jenny Balint for childcare and Simon Bronitt for comments.

[Also see article in the June issue, 4(30) ILB 10, which calls for the establishment of a Stolen Generations Reparations Tribunal. Eds.]


[1] Justice O’Loughlin described this as a power extending to all Territorians. But a person could only be declared a ward if (s)he had no accrued or potential voting rights: Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664 at 667.

[2] Gunner’s evidence, denied by Constable, was that he got into his bed and started ‘mucking around between my legs’.

[3] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[4] [1959] HCA 8; (1959) 101 CLR 298.

[5] X (Minors) v Bedfordshire County Council [1995] UKHL 9; (1995) 2 AC 633.

[6] Barrett v Enfield London Borough Council [1999] UKHL 25; [1999] 3 All ER 193.

[7] Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 167 ALR 1. Documentary evidence showed Ministers and senior public servants professed no awareness of any risk of harm.

[8] Justice O’Loughlin reached this conclusion despite other concerns about Mr Walter being a ‘basher’ being expressed during Mrs Cubillo’s time at Retta Dixon.

[9] Paramasivam v Flynn [1998] FCA 1711; (1998) 160 ALR 203.

[10] Breen v Williams (1996) 186 CLR 71.

[11] Justice O’Loughlin entertained the possibility of the later dates on the basis of earlier legislation, rather than the Limitation Act 1981 (NT).

[12] Ward v Walton (1989) 66 NTR 20.

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