Is assimilation justiciable?
Lorna Cubillo & Peter Gunner v Commonwealth 1
ROBERT VAN KRIEKEN
robertvk@mail.usyd.edu.au
The powers of the Director under the 1918 Ordinance were exceptionally wide.2
1. Introduction
The debate around the past treatment
of Aboriginal children has come to occupy a central place in the post-Mabo3 re-thinking of relations between Indigenous and non-Indigenous
Australians,4 and Justice O'Loughlin's recent judgment
in Cubillo & Gunner v Commonwealth5
is a significant contribution to this political and moral engagement with
the history and legacy of Australian settler-colonialism. In addition to
charting out the battleground for subsequent legal strategies, the judgment
is also an important watershed in the way the arenas of law, politics and
society might relate to each other in addressing the ethical questions surrounding
the current reassessment of Aboriginal child removal in particular, assimilation
in general, as well as the pathways which relations between Indigenous and
non-Indigenous Australians might take in the future.
Justice O'Loughlin's painstaking examination
of a large body of historical material and oral testimony provides food
for thought for the defenders as well as the critics of part-Aboriginal
child removal. Critics of the removal policies have tended to locate the
destructive impact of colonial social relations and a particular form of
assimilationism in government policies and practices, at the expense
of a sensitivity to the significance of both non-government bodies, especially
the churches, and the colonial character and effects of the broader European
social relations and structures themselves, to which government interventions
were often responding, rather than initiating.6 On the
other hand, some observers have construed O'Loughlin J's finding that, for
this particular period in the Northern Territory, there is simply insufficient
evidence to resolve many of the questions about the nature of governmental
removal policies one way or the other, as support for their interpretations
of part-Aboriginal child removal as benign and beyond criticism,7 but they would do well to look again. Justice O'Loughlin is
clear that even if those who removed and detained Lorna Cubillo and Peter
Gunner thought they were doing so `in their best interests', they would
`stand condemned on today's standards',8 and `subsequent
events have shown that they were wrong'.9
However, rather than reflecting on the judgment's
construction of the history of the removal of part-Aboriginal children,10 the discussion here concentrates on its findings of
law, and the findings of fact will only be outlined to the extent that they
affect the legal questions. If the current law of torts, equity and judicial
review is unable to produce a recognizably just means of addressing the
pain and suffering generated by Australian settler-colonialism, one approach
is clearly to pursue shifts in the authoritative interpretation in Australian
law of vicarious liability of public bodies, statutory duty, duty of care
and fiduciary duty, and this would certainly be the aim of further litigation.
But to the extent that it is not possible to attribute legal responsibility
to a `society', a `political rationality' or a `discourse', and to the extent
that assimilation and colonialism are not really justiciable, it may also
be useful to remain alive to the possibilities of identifying additional
or perhaps alternative approaches.11
The key dates, names and places in the case are as follows. Lorna Cubillo was born Lorna Nelson, with the tribal name of Napanangka, on 8 August 1939 on Banka Banka Cattle Station. She was taken from her grandmother's care in 1940 and placed with the Aboriginal community in the Ration Depot at Seven Mile Creek. The community was moved to Six Mile Creek in 1942 and to the Phillip Creek Settlement in 1945. In 1947 she was taken from Phillip Creek to the Retta Dixon home in Darwin, by Amelia Shankelton, the Superintendent of Retta Dixon, in truck driven by Les Penhall, a cadet Native Affairs Branch Patrol Officer. She was officially committed to Retta Dixon by the Director of Native Affairs, Frank Moy, in 1953, where she stayed until her 18th birthday in 1956.
Peter Gunner was born on 19 September 1948 on
Utopia Cattle Station. He was committed by the Director of Welfare, Harry
Giese, to St Mary's Hostel in Alice Springs on 24 May 1956. The committal
was approved on 15 January 1957 on receipt of his mother Topsy's consent
form bearing her thumb print, and he was declared a Ward under the new Welfare
Ordinance on 13 May 1957. He left St Mary's in 1963.
2. The Commonwealth's vicarious
liability - the independent discretionary function principle
Having survived the Commonwealth's
strike-out application,12 one of the legal gateways
that Mrs Cubillo and Mr Gunner had to pass through was to establish the
Commonwealth's vicarious liability for both their initial removal and their
subsequent detention in the Retta Dixon Home and St Mary's Hostel. There
were two issues: the status of the Director of Native Affairs/Native Welfare
under the Aboriginals Ordinance 1918 (NT), later the Welfare Ordinance
1953 (NT), and whether the Commonwealth was `vicariously liable for their
acts and omissions'.13
The underlying rule is that employers, including
the Commonwealth,14 are vicariously liable for acts
committed by its employees in the course of their employment, generally
under the `control' or authority of the employer. The important exception
in relation to public bodies is `if the tortfeasor was in the process of
carrying out an independent duty cast upon him or her by the law', rendering
their authority original rather than delegated.15 Justice
Dixon outlined the principle in Little v Commonwealth:16
[A]ny public officer whom the law charges with
a discretion and responsibility in the execution of an independent legal
duty is alone responsible for tortious acts which he may commit in the
course of his office and...for such acts the government or body which he
serves or which appointed him incurs no vicarious liability.
The line of authority for the `independent discretionary
function rule', which Gibbs CJ explained is `firmly established as part
of the common law of Australia,'17 runs from Tobin
v The Queen,18 through a sequence of subsequent
cases19 to Oceanic Crest Shipping Company v Pilbara
Harbour Services Pty Ltd20 and Attorney-General
(NSW) v Perpetual Trustee Co Ltd.21 The Enever
decision22 in particular, stated O'Loughlin J, is `authority
for the proposition that any authority that is specifically granted by the
legislature to a person is original authority'.23 As
Wilson J explained in Oceanic Crest,
it is the statutory authority possessed by
the servant that renders the employer immune to vicarious responsibility
for the conduct of the servant in the exercise of that authority and not
the character of the employer. It is immaterial whether the employer be
the Crown, as in Fowles, a statutory corporation, as in Stanbury
v Exeter Corporation, or a private company, as in this case.24
`Therefore', wrote O'Loughlin J, `any person
acting under statutory authority may be exercising an independent discretionary
function'.25 The exemption is conditioned by a `control
test', so that it fails to apply if the employee is subject to the control
of a Minister or the Executive in the exercise of the statutorily assigned
discretion.26
After examining those cases where the rule did
not apply, O'Loughlin J concluded that `[i]n each of the cases where the
Crown was held to be vicariously liable, it was because the Crown's relationship
to its officer either exhibited a measure of control or failed to exhibit
that an independence of action was available to the officer'.27
His Honour further observed that torts committed outside the discretion
granted by statute do attract vicarious liability, and that the Court's
interpretation will depend on the construction of the statute as a whole,
as well as of the statutory scheme of which it is part.28
Here, s6 of the Ordinance29
did not make the Director an `instrument' of the Commonwealth. Mrs Cubillo
and Mr Gunner submitted that `the Director exercised his powers and duties
subject to executive control the administration of the Ordinances was nothing
more than the carrying into effect of activities peculiarly within the province
of the Government,'30 but O'Loughlin J disagreed with
this construction of the relationship between the Director and both the
Administrator and the Minister. His Honour's opinion was that `a Director
was entitled and obliged to ignore an instruction from the Administrator
or the Minister if he or she did not think it to be in the interests of
the child to utilise his power under s 6'.31 What this
meant for Lorna and Peter was that if the Director's removal and detention
of them was either executed under s6 or, in Peter's case, at the request
of his mother, liability for any act or omission under s6 generate no vicarious
liability for the Commonwealth.32 However, later in
the judgment O'Loughlin J qualified this by stating that he had `no way
of knowing why Mr Moy participated in her removal and detention', so that
if he did so for some other reason, then `depending on what power he purported
to use, the Commonwealth might be at risk of being vicariously responsible
for the Director's conduct', and the same point applied to Peter.33 A similar conclusion was reached in relation to the Commonwealth's
vicarious liability for their treatment in Retta Dixon and St Mary's.34
This `independent discretion' immunity, as O'Loughlin
J observed, `has been modified and abrogated by statute as well as being
the subject of substantial criticism',35 particular
in relation to the torts of police officers. The problems include the fact
that it is difficult to justify in policy terms, and as RP Balkin and JLR
Davis point out, liability for the loss or damage suffered is transferred
from the Crown, where it could be absorbed, to a party far less likely to
be able to distribute the loss,36 not to mention difficult
to identify.37 Indeed, the effect of O'Loughlin J's
findings on vicarious liability in these proceedings is a nice illustration
of precisely these points. Professor Finn also observes that it has been
the rule rather than the exception throughout the history of Australian
public administration `to statutorily allocate functions directly to officials,
not for reasons of constitutional principle, but rather for reasons of convenience,
precedent and pragmatism',38 an approach which has
`further enhanced the protected position of governments'.39
Finn suggests that this internal distribution of powers within the apparatus
of government should be regarded as simply arbitrary, and proposes that
it ought to be of indifference to the larger question of the overall relationship
between government and the governed. In particular, such supposedly independent
discretion is still exercised with the full weight of the Crown's authority
behind it, so that,
considered from the subject's standpoint this
is surely the quintessential case of where the Crown (and the public purse)
should provide redress: an injury has been occasioned by a person acting
in or under colour of public office and while exercising the actual or
apparent authority conferred by the State.40
No doubt the individual citizens who have suffered
at the hands of a public official experience the suggestion that the Crown
exercises its full power and authority to legitimate and enforce what those
public officials do, but in the absence of any consequential responsibility
or liability, as morally problematic, to say the least.
The difficulty in law is, of course, that Courts are bound by Parliament's
intent, no matter what criticisms one might make of it from a political
and moral perspective, and it will only be possible to abrogate it in law
if it can be shown to contradict either some other legislative purpose or
a constitutional principle. None the less, despite the fact that it seems
to have been the product of a particular strategy of governance on the part
of Australian legislatures, the policy drawbacks of the concept of `independent
discretion' remain, particularly that it generates a relationship between
citizens and government officials which, by today's standards and values,
distributes responsibility and liability in a deeply problematic way, leading
to the statutory abolition of the immunity in most common law jurisdictions.
3. Causes of Action
Arguably the Court's finding on
absence of vicarious liability essentially meant that Mrs Cubillo and Mr
Gunner had the wrong respondents, but it was nevertheless necessary to apply
that finding in detail to each of the four causes of action: wrongful imprisonment,
breach of statutory duty, breach of common law duty of care, and breach
of fiduciary duty.
A. Wrongful imprisonment
Both Mrs Cubillo and Mr Gunner pleaded that their removal and detention
by the Director of Native Affairs constituted wrongful imprisonment and
deprivation of liberty. They did not challenge the Director's empowerment
by the Ordinance to interfere with Aboriginal children's freedom of movement
and liberty; the claim was rather that the Directors' regard to the Commonwealth's
general policy of removing part-Aboriginal children, although itself not
unlawful,41 had `caused the Directors to refrain from
acting in accordance with their own opinions' or `to act without having
regard to the interests of the children,'42 contrary
to the provisions of s6.
Justice O'Loughlin found, however, that the
documentary evidence did not support the proposition that there was a `general
removal policy' without regard for Lorna's and Peter's best interests. The
phrasing of s6, empowering the Director `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', in any case suggested that the legislature intended some discretion
to be exercised, allowing for the possibility that a Director would not
undertake care, custody and control if he decided that it was unnecessary
or undesirable in their interests. The evidence supporting the concept of
a `general removal policy' disregarding the child's interests and welfare
included the fact that familial consent to removal was sought but not required,43 and the simple presumption, from the highest policy
level of the Minister44 down to individual Patrol Officers45, that the mere fact of part-Aboriginality dictated
that it was in the child's best interest that they be removed.
However, these aspects of the policy and practice
of part-Aboriginal child removal were counter-balanced in O'Loughlin J's
reasoning by evidence of:
This evidence lent support to the counter-argument that patrol officers
did exercise at least some selectivity in the removal of part-Aboriginal
children, and that this selectivity was based on a consideration of the
individual circumstances of particular children and their `best interests'.
The conclusion reached by His Honour was that `the evidence does not support
a finding that there was any policy of removal of part Aboriginal children
such as that alleged by the applicants'.46
It is important to emphasize the extent to which this a negative finding
of `not enough evidence to decide', rather than a positive finding of fact
about the history of part-Aboriginal child removal. There was no evidence
excluding the possibility that the expression of concern by administrators
and patrol officers for the children's `welfare' and `best interests' was
either old wine in new bottles47 or the linkage
of welfare concerns with the pursuit of the more or less gradual disappearance
of a distinct Aboriginal society and culture, rather than the primacy of
the former over the latter.48 That there was no policy
to remove all part-Aboriginal children borders, with respect, on
being a distinction without a difference: neither the lack of logistical
capacity fully to implement a policy, nor the existence of situations which
rendered its implementation unnecessary, say very much about its existence.
No evidence ruled out the possibility that decisions not to remove children
might have been the result of balancing the aims of the policy with pragmatic
concerns: the mere selective application of a policy does not render its
existence logically impossible.
But what is most decisive here is that even if one were to come to a
different weighting of the evidence and conclude that there was a general
policy pursuing, say, `the removal of as many part-Aboriginal children as
practicable with little regard for their individual best interests', O'Loughlin
J also found that the evidence `would not justify a finding that it was
ever implemented as a matter of course in respect of these applicants'.49 The applicants were thus faced with a double hurdle,
establishing both (a) a general removal policy disregarding their individual
needs and welfare and (b) its application in their particular cases; O'Loughlin
J found that they fell at the first hurdle, but even if they had not, the
lack of evidence meant that they would instead have fallen at the second.
This finding did not, however, conclude the question of wrongful imprisonment.
Although O'Loughlin J found that the applicants' evidence could not be raised
to the level required to rebut the presumption that where statutory powers
are based on the formation of particular opinions, those opinions have indeed
been formed,50 it was also stated that where the applicants
plead unlawful removal and detention, the onus was on the Commonwealth to
rebut those allegations. The plaintiff only need establish imprisonment,
whereupon the defendant is required `to prove a lawful justification for
the imprisonment either at common law or by statute'.51
To establish imprisonment, it will be sufficient to prove that there
was a constraint on the applicant's will that was so great as to induce
him or her to submit to a deprivation of liberty; physical force need not
be used. A mere taking and detaining will be sufficient and it can be effected
as a result of the accumulation of the actions of two or more persons.
Thus, it could be that the combined actions of Miss Shankelton and Mr Penhall
might be the catalyst for the cause of action.52
There was thus an onus placed on the Commonwealth to demonstrate that
the applicants' removal and detention were lawful, pursuant to the provisions
of the Ordinance. There was, His Honour found, no evidence sufficient to
discharge this onus: `there was no evidence before the Court that the Director
used or intended to use his powers under s6 of the 1918 Ordinance',53 namely that, in his opinion, it was "necessary and
desirable in the interests of the child to do so". Justice O'Loughlin
found, then, that Mrs Cubillo had established a prima facie cause
of action for wrongful imprisonment against Les Penhall and the estates
of Frank Moy and Amelia Shankelton.54 However, His
Honour had also found that the Commonwealth was not liable for any action
taken by the Director under s6; a possible exception would be if it could
be established that Lorna's removal took place under some other purported
power.55
For Peter Gunner, His Honour found that the Director `did not have a
legal involvement in Peter's removal from Utopia',56
since there was insufficient evidence that his mother, Topsy, had not
requested and consented to his removal. Her thumb print was present on the
form requesting his removal, and there was no means of establishing whether
or not the document had been explained to Topsy and whether or not the thumb
print was indeed hers. In coming to the conclusion, on the balance of probabilities,
that Topsy had given her informed consent to Peter's removal, O'Loughlin
J added:
In coming to that conclusion, I am aware that there was no way of knowing
whether the thumb mark on the "Form of Consent" was Topsy's;
even on the assumption that it was, there was no way of knowing whether
Topsy understood the contents of the document. But it is not beyond the
realms of imagination to find that it was possible for a dedicated, well-meaning
patrol officer to explain to a tribal Aboriginal such as Topsy the meaning
and effect of the document. I have no mandate to assume that Topsy did
not apply her thumb or that she, having applied her thumb, did not understand
the meaning and effect of the document.57
In addition, following the rule in Jones v Dunkel58 and the subsequent jurisprudence concerning the rule,59 His Honour also found that Mr Gunner's failure to adduce the evidence of his aunts regarding the question of Topsy's consent `suggested that their evidence would not support a finding of non-consensual removal', and that the inference that Topsy had consented to his removal is `more readily accceptable'.60
Regarding Lorna and Peter's detention, O'Loughlin J's findings were that,
for particular periods, both the Director and the Commonwealth were completely
protected by s16 of the Ordinance granting unconditional discretionary power
to the Director of Native Affairs to cause `any aboriginal or half-caste'
to be kept within an appropriate institution, with no requirement that the
detention be based on assessment that it was in the child's best interests.61 These periods were, for Lorna, between 18 August 1953,
when she was committed by the Director (Moy) and 18 August 1956 when she
left Retta Dixon; for Peter, between 24 May 1956 when he was committed to
St Mary's by the Director (Giese) and 15 January 1957 when Peter's committal
was approved by the Administrator on receipt of his mother's thumb-printed
consent form. Regarding Peter's subsequent detention, the Court's finding
that his mother has consented to his removal meant that he was legally detained
at her request, rather than pursuant to a power exercised by either the
Director or the Commonwealth. In relation to the period of Lorna's detention
between prior to 1953, there was no evidence allowing the Court to come
to a conclusive finding on whether or not the Director was purporting to
act pursuant to his statutory power and had formed an opinion that it was
`necessary or desirable in Lorna's interests to do so.62
The applicants also sought to subject their removal and detention to the
principles of judicial review, in particular the doctrines of Wednesbury
unreasonableness and inflexible application of policy. In relation to judicial
review of a decision which can be shown to be so unreasonable that no reasonable
person could have reached it,6363 the court is not
to substitute its own judgment for that of the decision-maker.64 In this case, the decision concerned involved the balancing
of a number of concerns, identified by His Honour as:
In relation to Frank Moy, there was simply no evidence of the concerns
governing his decision to remove Lorna, and in relation to Harry Giese,
there was at least some evidence on the other side, indicating regard for
his individual circumstances, such that His Honour was `prepared to draw
the inference...that a view had been formed that it would be in Peter's
best interests to go to St Mary's so that he could attend school'.66 This also meant that there was no possibility of a finding
of an inflexible application of policy, since this doctrine can be applied
only `when a court is able to review the evidence that related to the conduct
of the decision-maker'. In the absence of any such evidence, `the court
cannot meaningfully engage in that exercise of review'.67
Both of these grounds of judicial review failed.68
B. Breach of statutory duty
Mrs Cubillo and Mr Gunner submitted that the Director should, as
their legal guardian, have had regard to a consideration of their best interests,
the possibility of injury resulting from removal, the possibility of an
adverse effect on their families, their health and welfare, the suitability
of the institution in which they were detained, and whether a European education
would actually have a beneficial effect on them.69
In relation to their detention, the duties proposed included monitoring
and supervision of the institutions to ensure satisfactory standards and
care, their supervision within the institution to ensure their safety and
well being, and removal from the institutions if they were failing to provide
proper or adequate care.70
Neither the Aboriginals Ordinance 1918 (NT) nor the Welfare
Ordinance 1953 (NT) conferred a right on injured persons to recover
compensation for any breach of statutory duty,71 but
such a right might arise by implication, if the inference of legislative
intent for civil recovery for such breach can be shown.72
Chief Justice Brennan, writing extra-judicially, outlined that the cause
of action arises
only when a statute creates a duty to be performed for the benefit of
the plaintiff or, more usually, of a class of which the plaintiff is a
member and only when, on its true construction, it confers on the plaintiff
or on members of that class a right to recover damages for loss occasioned
by the breach.73
Following the point made by Lord Brown-Wilkinson in X (Minors) v Bedforshire
County Council,74 O'Loughlin J added the observation
that welfare legislation should be understood in terms of the benefit it
is intended confer on society as a whole, in addition to the limited class
with which it is directly concerned.75
It is an essential element of the separation of powers doctrine that, as
O'Loughlin J explained, `a statutory authority cannot be liable in damages
for doing that which Parliament has authorised',76
so that
This Court has no jurisdiction to review the desirability of policies
underlying Acts of the Parliament. It is therefore not open to this Court
to review those policies that were enacted in the Ordinances and embodied
in the powers conferred by the Ordinances. Those provisions, being valid
laws, bind this Court and bind the applicants.77
The Director's actions could only be regarded as beyond power if it was
`exercised for a malicious purpose or for an objective that was foreign
to the mandates of the legislation'.78Another possible
ground for a cause of action would be negligence in the performance of a
statutory duty.79
Justice O'Loughlin found that in arranging for Lorna to continue to be
detained at Retta Dixon and for Peter to be admitted to St Mary's, the Directors'
actions `reflected the policy that was expressly embodied in the duties
imposed upon the Directors under the Ordinances and pursuant to which they
were required to exercise their power under the Ordinances',80
and in the absence of evidence of malicious or alien purpose, abuse of power
or lack of reasonable care, there could be no breach of statutory duty.
C. Breach of duty of care
The core elements of the tort of negligence are the establishment
of a duty care, negligence in breach of that duty, and damage that was not,
in law, too remote a consequence of that negligence.81
After considering particular English,82 New Zealand83 and Australian84 authorities,
O'Loughlin J, applying the key elements of common law liability of public
bodies identified by McHugh J in Crimmins v Stevedoring Industry Finance
Committee ,85 reiterated the points made
in the earlier discussion of vicarious liability and statutory duty to conclude
that the Commonwealth could not be held to have a duty of care towards Lorna
and Peter nor, if that was incorrect, was there any evidence that such a
duty had been breached.86 The power of removal and
detention lay in the Director, not the Commonwealth, so there was no act
or omission on the Commonwealth's part, nor was there evidence that the
Commonwealth was aware of any risk of harm to either Lorna or Peter. Justice
O'Loughlin also found that the imposition of a liability on either the Director
or the Commonwealth in regard to the discretionary powers under s6 of the
1918 Ordinance `would, arguable challenge the "core policy-making"
function of the legislation".
The Welfare nature of the policy as found in the Aboriginals Ordinance,
the difficulties through distance, remoteness, language and contrasting
cultures in implementing the policy together with the subjective views
of a Director in forming an opinion about what was necessary or desirable
in the interests of a particular child do not favour the imposition of
any duty.87
His Honour did nevertheless examine whether the Directors had a common
law duty of care to Lorna and Peter and, on the side of finding such a duty,
said:
The guardianship, the power to undertake the care, custody and control
of a child, the power to keep the child in an Aboriginal institution and
the statutory obligations in s 5 to advance the welfare of the child could
all be said to be compatible with the existence of a duty of care. Furthermore,
there was nothing in the legislation that would exclude a common law duty
of care nor was there anything in the legislation that provided a remedy
for any breach of an alleged statutory duty.88
However, there were a number of counter-considerations deriving from
Lord Brown-Wilkinson's judgment in X (Minors).89
The first was the fact that the Ordinance placed a heavy and broad responsibility
on the Director such that it was likely that some mistakes would be made,
but they would none the less be made `with the interests of the child in
the forefront of the Director's consideration'. Second, removal was a delicate
task and His Honour was impressed by `the interest and concern that some
patrol officers took when they were required to consider the welfare of
a child'. Third, the risk of litigation is likely to have a problematic
impact on the day-to-day operations of welfare authorities. Taking these
considerations into account, O'Loughlin J concluded generally that `a decision
to take a child into care is one that courts are not fitted to assess',90 and in particular that Mrs Cubillo and Mr Gunner had
`failed to satisfy the Court that, when (or if) the Director removed and
detained them, he did not have the necessary opinion about their interests'.91
In relation to Lorna and Peter's detention, although O'Loughlin J did
not doubt that they had `suffered severely' during their detention, he found,
firstly, that there was an insufficient relationship between the conditions
in the two institutions and the loss and damage for which they were seeking
compensation. It was, His Honour found, `the removal and the detention -
more than the conditions of the detention - that were the cause of their
sufferings'.92 His Honour felt that Mrs Cubillo's and
Mr Gunner's sense of loss would have been very similar even if the conditions
at Retta Dixon and St Mary's had been excellent. `I do not think,' wrote
O'Loughlin J, `that overcrowding or unsatisfactory aspects of hygiene caused
or contributed to her 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'.93 The same observation applied to Mr
Gunner.
Although the Court accepted both that Lorna been subjected to physical
assault while at Retta Dixon, and Peter to sexual assault while at St Mary's,
neither the Director nor the Commonwealth knew of these assaults, and no
one in authority was told at the time, so that their was neither actual
knowledge nor a situation `such that it could be said that either the Director
or Commonwealth ought to have known of the assaults or of the assailants'
propensities to commit the assaults'.94 The finding
in favour of Mr Gunner was that the Director `did not take appropriate action
about the condition of St Mary's,'95 but that the breach
of duty of care was on the part of the Director, for which the Commonwealth
was not vicariously liable.96
D. Breach of fiduciary duty
The final claim was breach of fiduciary duty, based on (1) the existence
of a fiduciary relationship with the Commonwealth, (2) the existence of
a fiduciary relationship with the Directors, for which the Commonwealth
had a vicarious liability, and (3) the Commonwealth's knowing participation
in the Directors' breaches of those fiduciary duties.97
A fiduciary relationship `is said to arise where one party reposes confidence
in another who is expected to act in the interests of the first party rather
than in his own interests'.98 The circumstances giving
rise to a fiduciary relationship `include such matters as inequality of
bargaining power, an undertaking to act in the interests of another person,
an ability to exercise a power or a discretion that may affect the rights
of another and issues of dependency and vulnerability' as well as relationships
created by statute.99 The existence of a fiduciary
relationship is also `a question to fact to be resolved at trial'.100 However, in Australian law it has been restricted to situations
of economic loss, and there is extreme reluctance to expand the range of
fiduciary obligations to arenas with no economic aspect, largely on the
argument that such conflicts of interests are more approriately dealt with
in tort law.
The applicants' attempted utilization of the jurisprudence of Bennett
v Minister for Community Welfare101 was
quickly dispatched with the observation that there had been no proof of
any rights being infringed.102 However, there remained
the question of whether the Court should exercise its equitable jurisdiction
to identify these particular relationships of guardian and ward as fiduciary
relationships. In Paramasivam v Flynn,103 the
Full Federal Court had determined that such a relationship `may give
rise to duties typically characterised as fiduciary,' but disagreed, when
it was a matter of non-economic loss, `that "fiduciary" is the
right label for it, still less that equitable intervention is necessary,
appropriate or justified by any principled development of equity's doctrines'.104 Without denying that the law of fiduciary duties
may be extended to encompass novel situations,
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, are to be compensated. That is not a field on which there
is any obvious need for equity to enter and there is no obvious advantage
to be gained from equity's entry upon it. And such an extension would,
in our view, involve a leap not easily to be justified in terms of conventional
legal reasoning.105
In arriving at this decision, the Full Federal Court had declined to
follow the greater inclination in the Canadian courts to apply equitable
principles regarding fiduciary duties to non-economic losses within parental
relationships,106 relying in part on the authority
of the High Court's decision in Breen v Williams.107
Overall, O'Loughlin J felt that it would be `inappropriate for a judge at
first instance, to expand the range of the fiduciary relationship...where
the conflict did not include an economic aspect'.108
4. Extension
of time and laches
In principle the action was in any
case statute-barred by the Limitation Act 1981 (NT), and an integral
part of it was an application for the Court to exercise its discretion to
grant an extension of time. The Court has to be satisfied that the preconditions
in s44(3)(b) of the Limitation Act have been met before it has discretion
to grant extension of time.109 Then it is necessary
to establish `that in all the circumstances of the case, it is just to grant
the extension of time': s 44(3)(b). In this case, the Court had to be satisfied
that the applicants had commenced their action within 12 months after the
ascertainment of facts material to their case (s44(3)(b)(i)), and that their
failure to commence action `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' (s44(3)(b)(ii)). After
a detailed discussion of the time-frame within which both Lorna and Peter
became aware of the loss and damage they had suffered, particularly psychiatric
damage, His Honour came to the conclusion that they had both passed this
threshold test. In relation to Mrs Cubillo, His Honour identified the following
arguments in favour of granting an extension:
However, these considerations had to be weighed against the absence of
material witnesses, the infirmities of others, and the absence of a large
amount of documentary evidence. The mere fact of prejudice to the respondent
does not dictate refusal of an extension of time,111
the Court's decision will depend on all the circumstances of the case. Here
O'Loughlin J was `very concerned by the absences of the Directors and Acting
Directors of Native Affairs and Directors of Welfare and, to a lesser extent,
the Administrators of the Territory',112 and felt
that these restrictions on the Commonwealth's capacity fairly to present
its case were `irremediable'. His Honour concluded:
The strength of the Commonwealth's claims, based on the decisions in
Brisbane South Regional Health Authority v Taylor and Paramasivam
v Flynn, is, in my opinion, overwhelming. I have come to the conclusion
that its defence, based on prejudice, must prevail.113
The example of the cause of action for false imprisonment was used to
illustrate the point. The Commonwealth had an onus to show that Lorna's
taking was lawful, but how was it do that?
Every person who was in authority, such as Mr Moy is dead; no writings
on the removal of the children have been located. The Commonwealth has
no chance whatsoever of defending the actions of the Director of Native
Affairs in 1947.114
Similarly in relation to questions of fiduciary duty and the equitable
defence of laches, His Honour found that the absence of material witnesses
and other evidence meant that `it would be grossly unfair to proceed'.115 Even if there had been a relationship of fiduciary
duty between the applicants and the Directors, there had been breach of
that duty, and the Commonwealth was vicariously liable for that breach,
the Court would nevertheless not have exercised its discretion regarding
extension of time in the applicants favour, and the claims for equitable
relief for breaches of fiduciary duty would also have been barred.116
In assessing notional damages, the claims for exemplary damages were rejected
outright, since the facts did not support any argument that the Commonwealth
had acting either with `contumelious disregard' of their interests or a
`wanton cruel and reckless indifference' to their welfare and their rights.117 Justice O'Loughlin calculated damages for the breaches
of duty, with interest, at $126,800 for Mrs Cubillo and $144,100 for Mr
Gunner.
5. Conclusion:`well-meaning
callousness' 118
and Australian law
The legal and evidential obstacles
facing Lorna Cubillo and Peter Gunner were multiple and many-sided, but
we can identify the four major ones: the evidential problems generated by
the passage of time; the Australian jurisprudence surrounding fiduciary
duties; the protection provided to the Commonwealth by the relevant legislation
in respect of its vicarious liability for the actions of its officers; and
the problems posed by the discursive construction of policies of assimilation
in terms of Aboriginal `welfare' and `the best interests of the child',
as well as the non-justiciability of the policies of an Australian Parliament.
First, the applicants overcame most of the hurdles to obtaining extensions
of time, bar one: in the interests of justice, the Court will seek to ensure
that both parties have a more or less equivalent capacity to argue their
case. Justice O'Loughlin found that the proceedings suffered from the absence
of the testimony of significantly relevant witnesses - particularly Frank
Moy, RK McCaffrey, Harry Giese and Amelia Shankelton - regarding the rationale
behind the removal of these particular children which made it impossible
for the Commonwealth reasonably to argue its case and for there to be a
fair trial. In effect the extension of time was rejected for more or less
the same reasons that the substantive aspects of Mrs Cubillo's and Mr Gunner's
legal arguments were refused: just as the `huge void'119
in the evidence made it impossible to determine questions of legal responsibility
and liability one way or the other, it also undermined the possibility of
a fair trial. Justice O'Loughlin's explanation for this decision is cogent
and convincing, and the only way it might be overcome on appeal is to be
able to demonstrate that the evidence of the absent central witnesses is
somehow not as crucial to the Commonwealth's side of the story as His Honour
believed.
Second, the question of finding a breach of fiduciary duty in relation
to the removal of part-Aboriginal children essentially revolves around the
willingness of Australian courts to move towards the approach of the Canadian
courts120 and apply the equitable principles of fiduciaries
to non-economic losses suffered within guardian-ward relationships.121 Justice O'Loughlin was reluctant, as a Judge at first
instance, to bring about such a major change in Australian law in the face
of the authority of the High Court's decisions in Oceanic Crest and
Breen v Williams, so that this question is only likely to be resolved
in the High Court itself.
Third, a similar problem characterizes the question of vicarious liability:
the authorities appear to be firmly on the side the `independent discretionary
function' rule, which erects a firewall around the Commonwealth's liability
wherever the legislation at issue charges particular public officials with
the relevant discretion and responsibility. The fact is that the statutory
assignment of duties and responsibilities to particular officers rather
than the Executive as a whole is one of the more effective obstacles which
Australian governments have, either deliberately or by accident, thrown
up against the Commonwealth being held legally responsible for adverse effects
of its administrative arrangements on its citizens, not least its Indigenous
subjects. In this case, then, the wording of the statute compels those who
have suffered loss and damage while under the power of the Director of Native
Welfare to sue the estate of whoever was Director at the time, or particular
individual officers. This clearly remains problematic; O'Loughlin J still
recognized the practices as being problematic by contemporary standards,
and as Father Frank Brennan has argued:
...it would seem to me that the big moral and political challenge for
the country is to say, `If there are wrongs which have been committed,
and those wrongs according to law should be satisfied, then to say that
it should be done out of the estates of deceased persons, or of churches
which were under-resourced at that time, is I think a betrayal of a national,
moral and political commitment.122
As Professor Fleming has also remarked, finding vicarious liability may
be what is needed to `serve the cause of deterrence'.123
Again, this will need to be resolved either in a superior court or by legislation,
unless there is a fact situation in which removal and detention took place
for some reason other than the exercise of the statutorily assigned discretion
of s6, which is what would generate Commonwealth vicarious liability.
It is conceivable, as Professor Finn suggests, that `the High Court may
be induced to reconsider this matter - and overrule a significant number
of its own decisions',124 or at least to distinguish
its approach to shipping pilots125 from its approach
to welfare officials. It may also be possible to develop an jurisprudential
approach in which the concerns outlined by the High Court in Oceanic
Crest, particularly the question of where the statutory power has actually
been allocated, are balanced against the policy disadvantages of
allowing the Crown to escape from liability for actions which were still,
in the final analysis, done in its name and backed with the full force of
its legal authority.
Finally, even if the Commonwealth were vicariously liable for
the actions of the Directors, the fact that these Aboriginal child removal
practices were more or less exactly what Parliament intended in realizing
the aims of assimilation narrows significantly the range of possible strategies
in law. It would be an unfortunate reading of O'Loughlin J's judgment to
say, as Robert Manne has, that it is `blind to the racist assumptions that
conditioned what, for 40 years, the administrators regarded as being, self-evidently,
in the best interests of the child'.126 On the contrary,
O'Loughlin J insisted that the `belief that it was in the best interests
of part Aboriginal children to assimilate them into the European mainstream
and that the best way to do that was through a western style education'
was qualified by the fact that
Having made the decision to remove the child, there was a total disregard
of the fact that the child was also part Aboriginal, of the fact that the
child's mother or family with whom the child was living was or were Aboriginal
and of the fact that the child had been brought up only aware of Aboriginal
culture and unaware of European culture.127
It was in this respect that `those in authority stand condemned on today's
standards'.128 Rather than failing to recognize
the `racist assumptions' underlying dominant conceptions of Indigenous welfare,
O'Loughlin J's reasoning was more a matter precisely of addressing the legal
consequences of that fact that those assumptions concerning the worth of
Aboriginal culture were dominant at that time, part of `the mainstream
thinking of people in earlier times'.129 Justice O'Loughlin
agreed that Lorna Cubillo and Peter Gunner had suffered severely `as a result
of the actions of many men and women who thought of themselves as well-meaning
and well intentioned but who today would be characterised by many as badly
misguided politicians and bureaucrats'.130 The problem
in law was demonstrating that they were not acting pursuant to statutorily-assigned
powers or beyond those powers.
It is true that both sides have tended to reason in terms of a simple
opposition between the pursuit of either `welfare' or European mono-culturalism.131 But it is precisely because of the experience of
their intersection, and the fact that governmental policies and practices
concerning Aboriginal `welfare' and `best interests' also had these more
problematic purposes embedded within them, that Lorna and Peter pursued
their actions in the first place: this was a central focus of the testimony
to the Bringing Them Home report132 and the
conceptualization of Aboriginal child removal in terms of `genocide'. The
contours of the debate so far have obscured the fact that what was being
said was not really that policies destructive of Aboriginal society and
culture were pursued instead of welfare policies, but that what went under
the name of the latter should be regarded in substance as equivalent to
the former. As the anthropologist Professor WEH Stanner observed as late
as 1964, `Our intentions are now so benevolent that we find it difficult
to see that they are still fundamentally dictatorial'.133
Once we get to the point of recognizing that conceptions of Aboriginal
`welfare' and the pursuit of the effective dissolution of a distinct Aboriginal
cultural identity were interwoven with each other, rather than mutually
exclusive, this has important consequences with respect to law. It means
that whatever problematic aspects of government Aboriginal welfare policy
a litigant might be trying to address, since it will both have been wrapped
up in the language of `welfare' and `best interests', and will generally
have constituted the express intentions of the relevant Parliament, there
will only be a relatively narrow window of opportunity for mounting a legal
challenge, restricted to those fact situations where there is sufficient
evidence to indicate - in that particular case - that actions were taking
beyond the powers that Parliament had granted.
In this sense, O'Loughin J's judgment takes some important steps towards
clarifying the role that law might actually play in addressing the question
of the stolen generations. Essentially that role is a very precise and relatively
confined one: the evidential problems are not easy to surmount, the Australian
law surrounding vicarious liability and fiduciary duty currently does not
favour resolution in court, and the practices associated with assimilation
are only justiciable to the extent that one can show that they were pursued
beyond their administrators' statutory powers.134
More broadly, Father Frank Brennan has noted the parallels between this
judgment and Blackburn J's in Milirrpum v Nabalco Pty Ltd:135
a very painstaking decision written once again by an Adelaide-based
judge, looking at the situation in the Northern Territory but saying with
deep regret, `Look, the evidence and the law doesn't carry.' But saying,
`There is an extraordinary moral wrong here that needs to be rectified,
and it's up to politicians to do something.'136
In the case of native title, the subsequent developments were, of course,
the passage of the Aboriginal Land Rights (NT) Act 1976 (Cth)
after the election of the Whitlam Government in 1972, and the introduction
of the Native Title Act 1993 (Cth) in the wake of the 1992 Mabo
decision.137 It may be necessary for the same pattern
to emerge again, before the moral and political issues raised by the current
re-assessment of Aboriginal child removal are resolved.
Notes
1
Cubillo v Commonwealth [2000] FCA 1084
(Cubillo).
2
Id at para144.
3
Mabo and Ors v Queensland (No. 2)
[1991-1992] 175 CLR 1.
4
Tim Rowse, After Mabo: Interpreting Indigenous Traditions
(1993) at 1; Paul Patton, `After Mabo' (1994) 27(4) Southern Review
511; Jeremy Webber, `The jurisprudence of regret: the search for standards
of justice in Mabo' (1995) 17(5) SydLR 5; Duncan Ivison, `Decolonizing
the rule of law: Mabo's case and postcolonial constitutionalism'
(1997) 17(2) Oxford Journal of Legal Studies 253; Robert van Krieken,
`From Milirrpum to Mabo:
the High Court, Terra Nullius and moral entrepreneurship' (2000) 23(1) UNSWLJ 63; Haydie
Gooder & Jane M Jacobs ``On the border of the unsayable': the apology
in postcolonizing Australia' (2000) 2(2) Interventions 229; Duncan
Ivison, Paul Patton & Will Sanders (eds) Political Theory and the
Rights of Indigenous Peoples (2000). More broadly, see Elazar Barkan,
Elazar, The Guilt of Nations: Restitution and Negotiating Historical
Injustices (2000).
5
Above n1;
currently under appeal to the Full Court of the Federal Court.
6
For a development of this point in relation to the class-focused
`social control' critiques child welfare generally, see Robert van Krieken,
Children and the State (1991).
7
For example, Bill Hayden's speech on 11 October 2000: `Subtlety,
not sabres, for reconciliation' Sydney Morning Herald (12 October
2000) at 12.
8
Cubillo
at para 1560.
9
Id
at para 1562.
10
There is now an extensive literature, including Anna Haebich, Broken
Circles: Fragmenting Indigenous Families 1800-2000 (2000); Robert van
Krieken, `The "stolen generations": on the removal of
Australian indigenous children from their families and its implications
for the sociology of childhood'
(1999) 6(3) Childhood 297; Tony Austin, Never Trust a Government
Man: Northern Territory Aboriginal Policy 1911-1939 (1997); Russell
McGregor, Imagined Destinies: Aboriginal Australians and the Doomed Race
Theory, 1880-1939 (1997); Suzanne Parry, `Identifying the process: :
the removal of `half-caste' children from Aboriginal mothers' (1995) 19(2)
Aboriginal History 141, Peter Read, The Stolen Generations: The
Removal of Aboriginal Children in New South Wales, 1883 to 1969 (1983).
11
For example, a reparations tribunal, which would not require the
establishment of legal responsibility and liability: Chris Cunneen, `One
way to give back to the stolen generations' Sydney Morning Herald (14
August 2000) at 14.
12
Cubillo & Another v Commonwealth [1999] 89 FCR 528.
13
Cubillo
at para 1087.
14
Groves v Commonwealth (1982) 150 CLR 113.
15
RP Balkin & JLR Davis, Law of Torts, (2nd ed.
1996) at 769-770.
16
(1947) 75 CLR 94 at 114.
17
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty
Ltd (1986) 160 CLR
626 at 637 (Gibbs CJ).
18
(1864) 143 ER 1148.
19
Stanbury v Exeter Corportation (1905) 2 KB 838, Enever
v R (1906) 3 CLR 969, Baume v The Commonwealth (1906) 4 CLR 97,
Fowles v Eastern & Australian Steamship Co Ltd [1916] 2 AC 556,
Field v Nott (1939) 62 CLR 660, Above n16, Attorney-General (NSW)
v Perpetual Trustee Co Ltd (1952) 85 CLR 237.
20
Above n17.
21
[1995] AC 457. An overview is provided in Susan Kneebone, `The independent
discretionary function principle and public officers' (1990) 16(2) Monash
ULR 184.
22
(1906) 3 CLR 969
23
Cubillo at para 1099.
24
Above n17
at 650.
25
Cubillo at para 1099.
26
Bennett v Minister for Community Welfare (1988) Aust Torts
Reports 80-210 at 68,089 (Nicholson J).
27
Cubillo at para1121.
28
Id at para 1118.
29
s6 (1) The Chief Protector 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.
(2) Any person on whose premises
any aboriginal or half-caste is, shall, on demand by the Chief Protector,
or by any one acting on behalf of the Chief Protector on production of his
authority, facilitate by all reasonable means in his power the taking into
custody of the aboriginal or half-caste.
30
Cubillo at para1132.
31
Id at para 1132.
32
Id at para 1133.
33
Id at para 1167.
34
Id at para 1141.
35
Id at para 1115.
36
Above n15 at 769.
37
John G Fleming, The Law of Torts, (9th ed. 1998)
at 418.
38
Paul Finn, `Claims Against Government Legislation' in Paul Finn (ed.)
Essays on Law and Government Vol 2: The Citizen and the State
in Court (1996) 25 at 37.
39
Paul Finn & Kathryn J Smith, `The citizen, the government and
"reasonable expectations'" (1992) 66 ALJ 139 at 145.
40
Above n38 at 37.
41
Cubillo at para 277.
42
Id at para1159.
43
Id at paras 241, 268.
44
Id at para 240.
45
Id at para 254.
46
Id at para 1160.This is, of course, not the same as finding that
there was no such policy, contrary to the reading of a number of commentators.
47
Some of the supposed evidence of concern for `welfare' seems, with
respect, rather weak, and it is sometimes unclear why His Honour regarded
it as such: e.g., paras 388-389, particular when it is observed that this
`concerned approach' was none the less `strongly flavoured with racial overtones':
para 389.
48
The High Court operated with this opposition between welfare and
non-welfare objectives in Kruger v The Commonwealth of Australia (1997) 190 CLR 1, where it
acknowledged that `No doubt it may be said with justification that the
events in question did not promote the welfare of Aboriginals' (Dawson J
at 62), but at the same time `The responsibility for welfare cast upon the
Chief Protector is at odds with the notion that the powers conferred by
the Ordinance are of themselves punitive &ldots;' (Toohey J at 85).
49
Cubillo at para 1160, emphasis added. Earlier O'Loughlin J
had outlined that `although it may be proved that some policy existed, that
does not thereby mean that the policy was implemented in respect of the
young Lorna and the young Peter. A benign policy might have been harshly
applied against the interests of a particular child by a public servant
for whom the Commonwealth was responsible: a harsh policy might have been
benignly applied in the best interests of the child': at para 166.