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O'Connor, Pam --- "History on trial: Cubillo and Gunner v The Commonwealth of Australia" [2001] AltLawJl 7; (2001) 26(1) Alternative Law Journal 27

History on trial: Cubillo and Gunner v The Commonwealth of Australia

Are the courts an appropriate forum for dealing with the ‘stolen generations’?

Pam O’Connor[*]

On 26 May 1997 the Human Rights and Equal Opportunity Commission (HREOC) delivered the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing Them Home. Among its 83 recommendations, the National Inquiry recommended that monetary compensation be paid to those harmed by the former practice of forcibly removing part-Aboriginal children from their families and placing them in institutions (Recommendations 3, 14-18).

A follow-up report commissioned by HREOC on the responses of Australian governments to the recommendations of the National Inquiry found that no government was willing to take the initiative in providing compensation.[1] All were content to adopt a ‘watching brief’ to observe how the courts would respond to pending litigation brought by indigenous people against governments.

With writs issued by or on behalf of 2000 indigenous people pending in the Federal Court since 1996,[2] much depended on the outcome of the first two cases against the Commonwealth, Cubillo and Gunner. On 11 August 2000 O’Loughlin J handed down his reserved judgment in Cubillo v Commonwealth [2000] FCA 1084; (2000) 174 ALR 97. He rejected all the applicants’ claims against the Commonwealth, while acknowledging the continuing trauma and suffering that resulted from their removal and detention.

The parties and their causes of action

The applicants, Mrs Lorna Cubillo and Mr Peter Gunner were born in the Northern Territory, in 1938 and 1948 respectively. Both were removed from their Aboriginal families as young children. Mrs Cubillo was placed in the Retta Dixon Home in Darwin, operated by the inter-denominational Aborigines Inland Mission, where she remained until she was 18 years old. Peter Gunner was taken to St Mary’s Hostel in Alice Springs, operated by the Australian Board of Missions (an Anglican organisation), where he remained until he was 16 years old.

Both applicants received inadequate material and emotional care, and suffered incidents of physical and sexual abuse at the hands of mission employees. Mrs Cubillo suffered post-traumatic stress disorder and depression arising from her childhood experiences, and Mr Gunner suffered from a chronic dysthymic disorder or chronic depression from the time of his removal.

Mrs Cubillo and Mr Gunner commenced their proceedings separately, and subsequently consented to orders pursuant to s.44 of the Judiciary Act 1903 (Cth) that they be heard together. They alleged that their removal and detention by officers of the Commonwealth constituted wrongful imprisonment and deprivation of liberty, was in breach of fiduciary duties owed to them by the Commonwealth, was in breach of statutory duty, and was a breach of a common law duty of care.

The applicants pleaded that the Commonwealth was vicariously liable for the actions of its officers, the Director of Native Affairs and, later, the Director of Welfare (the Directors). Alternatively, they pleaded that the Commonwealth knowingly participated in or promoted breaches of duty by the Directors. The Commonwealth was the sole defendant.

The applicants sought general damages for their pain and suffering and for their loss of enjoyment of life. They claimed damages for the loss of the Aboriginal language, culture and way of life, and for loss of entitlements to land under the Aboriginal Land Rights (NT) Act 1976 (Cth). They also sought aggravated and exemplary damages for the Commonwealth’s ‘conscious and contumelious disregard’ for their interests.

Following an unsuccessful interlocutory application by the Commonwealth to move for the summary dismissal of both actions, the trial commenced before O’Loughlin J in August 1999. After a hearing that lasted 107 days, judgment was handed down on 11 August 2000. The applicants failed comprehensively in all their causes of action against the Commonwealth.

The legislation

Both applicants were removed and detained under the purported authority of the Aboriginals Ordinance 1918 (NT), the same legislation that had been unsuccessfully challenged in Kruger and Bray v Commonwealth [1997] HCA 27; (1997) 146 ALR 126, on the ground that the powers it gave to the Director of Native Affairs were so extraordinarily wide as to violate implied constitutional rights. Under s.7 of the Ordinance the Director was the legal guardian of every Aboriginal adult and child. Section 6 authorised him to undertake the care, custody and control of an Aboriginal if, in his opinion, it was necessary or desirable for the interests of the Aboriginal for him to do so. Section 16 authorised the Director to detain an Aboriginal person within the boundaries of any reserve or Aboriginal institution and to remove the person to another like place. The Director’s extensive powers under s.16 enabled him to enter premises without a warrant and take the person into custody.

In 1957, while Peter Gunner was still at St Mary’s Hostel, the Welfare Ordinance 1953 (NT) came into operation. It repealed the Aboriginals Ordinance and provided that the Director of Welfare was the guardian of all wards (both Aboriginal and non-Aboriginal) who were declared by the Administrator of the Northern Territory. Peter Gunner was declared a ward under the Welfare Ordinance. Section 17 gave the Director of Welfare equivalent powers to those under ss.6 and 16 of the repealed ordinance.

False imprisonment

The applicants did not dispute that the Director had the power under s.6 of the Aborigines Ordinance to remove them from their families without consent and to detain them in missions. Their argument was that the Director could only exercise the power if he had formed an opinion that it was in their interests to do so. They submitted that the Director did not consider their interests as he was required to do, but acted under the dictates of the ‘removal policy’. This was a policy that called for part-Aboriginal children to be removed from their families without consent and placed in homes, missions and institutions in order to assimilate them into European society. The applicants said that it was unlawful for the Director to exercise his powers solely for the purpose of implementing the policy, without considering their individual interests. Therefore, they argued, there was no lawful justification for their removal and detention.

The existence of the removal policy was disputed by the Commonwealth, and a considerable amount of oral and documentary evidence was produced by both parties on this question. After reviewing the material, O’Loughlin J concluded that the evidence did not justify a finding that there was any policy of removal of part-Aboriginal children in the sense of ‘a policy of indiscriminate removal irrespective of the personal circumstances of the child’ (paragraphs [300] and [1160]).

His Honour added that if, contrary to that finding, there was such a policy, the evidence did not justify finding that it was ‘implemented as a matter of course’ in relation to the applicants, [1160]. There was a lack of evidence concerning the reasons for Mrs Cubillo’s removal in 1947, due to the intervening deaths of the Director of Native Affairs and other officers of the Native Affairs Branch who might have some knowledge of the the matter. The Court referred to the presumption of regularity which required that, in the absence of contrary evidence, it should be presumed that the Director had formed the opinion required by section 6, [1156]. In the case of Mr Gunner, the court was satisfied that his mother gave informed consent for him to go to St Mary’s Hostel, [787] and that officers of the Director of Welfare gave consideration to his personal interests, [781].

Breach of statutory duty

The applicants alleged that, in removing them from their families and detaining them without proper consideration for their interests and welfare, the Directors acted in breach of their statutory duties as guardians. It was alleged that the Commonwealth was vicariously liable for the breaches.

O’Loughlin J said that the applicants had failed to establish a breach of statutory duty on the part of any Director. Further, the Ordinances gave no indication of legislative intent to confer a cause of action for breach of statutory duty on a person injured by the breach, [1191]–[1192]. Even if the Directors could be held liable for breach of statutory duty in removing or detaining the applicants, the Court held that the Commonwealth was not vicariously liable for the breach. Under the ‘independent discretion rule’, the Commonwealth is not vicariously liable for the actions of a public servant who is performing a duty that statute has conferred on them by virtue of their office. The Ordinances conferred the relevant duties on ‘the Director’ and not on the Commonwealth, [1088]–[1123].

Duty of care

As an alternative cause of action, the applicants pleaded that their removal and detention breached a common law duty of care owed to them by the Commonwealth. O’Loughlin J held that no duty of care could be imposed on the Commonwealth directly, as it had no statutory power to act or to order the Director to act, [1197]–[1198]. His Honour then proceeded to consider whether the Directors could be said to owe a duty of care and if so, whether the Commonwealth was vicariously liable for breach of the duty.

Removal and detention

A common law duty of care can arise from the powers and duties conferred by statute, or from the performance of the statutory function. The applicants argued that, in removing and detaining a part-Aboriginal child, the Commonwealth assumed a duty of care in relation to the child. They alleged that their removal and detention were in breach of the duty of care.

O’Loughlin J held that, with respect to their removal and detention, the Director of Native Affairs owed the applicants no duty of care so long as he exercised his powers within the parameters of s.6 of the Aborigines Ordinance, [1234]–[1237]. This conclusion was reached despite the language of the Ordinance, which gave exceptionally wide powers to the Director to control the lives and movements of Aboriginal people.

His Honour’s conclusion was based on policy considerations. To impose an actionable duty of care would ‘place an inordinately heavy responsibility’ on the Director, and limit his freedom to act quickly to secure the welfare of a child. The decision to remove a child from his or her mother was ‘an extraordinarily delicate one’ that courts were not equipped to assess. His Honour was concerned that the risk of exposure to litigation might lead the Director to ‘adopt a more cautious and defensive approach’ to the performance of his functions, [1237]. He agreed with the views of Abadee J in Williams v The Minister, Aboriginal Land Rights Act & Anor (No 2) [1999] NSWSC 843; (1999) 25 Fam LR 86, that the same public policy considerations for not permitting a child to sue a parent for deficiencies in upbringing ought to apply with equal force where the child is taken into the care of another, [1256]–[1259]. His Honour’s comments on this point have since been approved by the New South Wales Court of Appeal in its decision dismissing Ms Williams’ appeal, Williams v Minister Aboriginal Land Rights Act 1983 (2000) Aust Torts R 81-578, paras 160–171 per Heydon JA (for the court).

If, contrary to this finding, the Directors did owe the applicants a duty of care, O’Loughlin J found no breach of duty with respect to the removals. There was no evidence to support Mrs Cubillo’s allegation that the Director failed properly to consider her interests before exercising his power under s.6. Mr Gunner had been removed as a result of his mother’s request that he be sent to St Mary’s Hostel. Even if the Director had removed Mr Gunner without his mother’s consent, the Commonwealth was not vicariously liable as the Director was the holder of an independent discretion, [1238].

Supervision of the institutions

Mrs Cubillo and Mr Gunner alleged that there had been a breach of the duty of care through inadequate supervision and monitoring of the Retta Dixon Home and St Mary’s Hostel and the staff employed at those institutions. O’Loughlin J found that a duty of care to the applicants did arise from the statutory duty specified in s.5 of the Aboriginals Ordinance 1918 and s.8 of the Welfare Ordinance 1953 to supervise and regulate the use and management of the two institutions, [1248].

In the case of St Mary’s Hostel, the Director had received reports from its officers and from the Administrator of the Territory indicating that the Hostel had inadequate facilities and staffing and that living conditions were unhygienic and unsanitary. O’Loughlin J found that the Director had breached his duty of care to Mr Gunner by leaving him in intolerable living conditions, [1268]. The duty of care rested on the Director personally, and the Commonwealth was not vicariously liable for the breach, [1141], [1268].

The assaults

The court then considered whether the duty of supervision was breached in relation to the serious assaults committed on Mrs Cubillo and Mr Gunner by staff employed at the institutions. His Honour said that the conduct of the offenders might have led to an award of damages against each of them and their respective employers, but the Director was not liable for the torts committed by the staff, [1255]. In each case the Commonwealth and the Director had no knowledge of the assault or of the offenders’ propensity to such conduct, [1255]. Neither the Director nor the Commonwealth had any control over the selection and appointment of staff at the Retta Dixon Home and St Mary’s Hostel, [522], [1037], [1255].

Fiduciary duty

The applicants alleged that a fiduciary relationship existed between them and the Commonwealth and between them and the Directors. The Commonwealth was said to be vicariously liable for the Directors’ breaches of duty, or directly liable as a knowing participant in the breaches. The applicants pleaded that the Directors and the Commonwealth were bound to act in their best interests and to take reasonable care of them, and that this duty conflicted with the interests of the Commonwealth in pursuing the removal policy.

O’Loughlin J was prepared to assume, on the authority of Benett v Minister for Community Welfare[3] and Paramasivan v Flynn[4] that the relationship of guardian and ward that existed between the Directors and each of the applicants was a fiduciary one, [1300]. But he was not prepared to find a breach of fiduciary duty where the alleged conflict of interest involved no economic aspect, [1307]. The applicants had limited their claim for breach of fiduciary duty to the psychiatric injuries and cultural losses said to flow from the conflict of interest.

Extension of time

The Commonwealth pleaded the limitation period in defence to the actions for false imprisonment, breach of duty of care and breach of statutory duty. The applicants sought an extension of time under s.11(1) of the Limitation Act 1981 (NT). O’Loughlin J had earlier declined to deal with this as a preliminary issue, preferring to reserve his decision on the matter until hearing all the evidence.

O’Loughlin J found that the applicants’ causes of action at common law had expired within six years of when they attained the age of majority, [1327]–[1330], [1355], [1339]. An extension of the limitation period could not be granted to an applicant unless the court was satisfied:


that the action was instituted within 12 months of the applicant’s ascertainment of facts material to his or her case (s.11(3)(b)(i)); and


that in all the circumstances of the case, it was just to grant the extension of time (s.11(3)(b)).

The applicants passed the threshold test in s.11(3)(b)(i). Both had instituted proceedings within 12 months of being informed of a medical assessment that they were suffering psychiatric injuries attributable to their removal and detention (being a fact that was material to their cause of action), [1340], [1350], [1373]. But O’Loughlin J decided that it would not be just to grant the extension because of the prejudice to the Commonwealth resulting from the delay, [1420]. Many witnesses had died, were unable to be located or were too infirm to give evidence. The application for extension of time under s.11(1) of the Limitation Act was refused.

There was no statutory limitation period with respect to the cause of action for breach of fiduciary duty. However, on the principle of laches, O’Loughlin J decided that the applicants’ claims for equitable relief should also be barred because of the prejudice to the Commonwealth, [1434].


The court assessed damages in the event that an Appeal Court might believe that the applicants had a sustainable cause of action. The court accepted that the applicants had shown a causative link between their mental injuries and their removal and detention, sufficient to justify the award of damages in tort and equitable compensation, [1492]–[1493].

Both applicants had submitted that their removal and detention cost them the loss of their Aboriginality, their culture and their family. The court said that damages may be awarded for cultural loss that a part-Aboriginal person has suffered, [1499]. However, any award would be very modest, as the applicants had failed to take all reasonable steps to mitigate their losses by promptly reuniting with their Aboriginal communities in adult life, [1522]–[1524].

General damages would include compensation for deprivation of liberty, for their distress and emotional reaction, for loss of their cultural heritage during their detention and early adult lives, and loss of entitlements to be consulted as traditional owners, and for their psychiatric injuries. In assessing damages, account would be taken of the fact that neither had sought to mitigate their loss by obtaining medical treatment for their condition, [1541].

Allowing interest from the date of the writs, Mrs Cubillo’s notional damages were assessed at $126,800 and Mr Gunner’s at $144,100, [1545]–[1547]. The court found no conscious wrongdoing on the part of the Commonwealth or other grounds to justify awarding exemplary damages or aggravated damages, [1555].

History on trial

Deniers of the stolen generation will argue that the outcome of the litigation vindicates the Commonwealth’s refusal to offer an apology or compensation. An Editorial in Quadrant has suggested that those who claim to have been ‘stolen’ are suffering false memory syndrome and group delusions.[5] Peter Howson and Reginald Marsh have put forward the view that the ‘stolen’ children were in fact ‘rescued’ children.[6] In the context of these claims, the evidence in the case and the court’s findings about the removal policy and its implementation in the Northern Territory may be of greater importance than the outcome of the judgment.

Robert Manne has suggested that history itself was on trial in this case. [7] Both legal teams invested considerable effort in combing through government archives and researching the history of child removals in the Northern Territory. The Commonwealth called evidence from a number of people who had been involved in the administration of native welfare during the period, evidence that had not been presented to the HREOC National Inquiry.

The court found that the documentary records justified a finding that the Commonwealth government had, since about 1911, pursued a policy of removing some part-Aboriginal children and placing them in institutions in Alice Springs and Darwin, [200]. The Commonwealth failed to persuade the court that there were no non-consensual removals of children, [200]. In relation to the written policy approved by the Commonwealth minister in 1952, O’Loughlin J said:

Despite the submissions by the Commonwealth to the contrary, I cannot accept that the policy, as finally approved by Sir Paul Hasluck, meant that a part-Aboriginal child could only be removed if his or her mother consented. [237]

The judgment also acknowledged the lasting nature of the ‘terrible pain’ that the children and their families suffered, [443]. For example, in Mrs Cubillo’s case His Honour accepted the applicant’s evidence that her removal from her Aboriginal family by patrol officers:

would have been a sad and traumatic event, one that would leave a lasting impression on a young mind. Mrs Cubillo said that she has suffered in silence and that she continues to suffer. I believe her. [445]

He found that the children at Retta Dixon Home were punished for speaking their own language, [593]; that Mrs Cubillo ‘craved for, but did not receive the love and affection that she needed’, [635]; that severe corporal punishment was administered [1266]; that she suffered severely during her period of detention, [1247]; that she was housed in overcrowded and inadequate conditions, [1247]; and that ‘her removal and continued presence at Retta Dixon was responsible for her loss of Aboriginal culture and her native tongue’, [657]. He accepted that there was a causative relationship between her removal and detention and her continuing mental injuries, [1493].

These findings, and others made in Peter Gunner’s case, vindicate the claims of the stolen children about their experiences of removal and detention, the nature of the loss and harm that followed, and the persistence of their suffering.


Litigation is a poor forum for judging the big picture of history. History is about general patterns, causes and consequences, while litigation focuses on particular facts relevant to the causes of action pleaded. The law has its own rules for resolving gaps in the historical record. Where documents have been lost or key witnesses are dead, infirm or missing, defendants can take refuge in the rules relating to onus and standard of proof, the presumption of regularity, laches and limitation periods.

Some important questions were never able to be judged on their merits in this case. For example, there could be no real examination of the consent purportedly given by Peter Gunner’s mother to his placement at St Mary’s for ‘the facilities of a standard European education’. The Commonwealth relied on a formal legal document purporting to bear the thumbprint of Mr Gunner’s mother, a tribal Aboriginal woman who spoke no English and who had never travelled beyond the lands of her clan. A promise made to her, that her son would be allowed to return for the school holidays, was never honoured. Whatever suspicions one might have about her understanding of what she was consenting to, the document could not be challenged without evidence. The mother was dead and no-one knew who obtained her thumbprint on the document, [787].

Other cases may arise in which there is better evidence of the circumstances surrounding the removal of a child. If it can be proved that a Director failed to consider the interests of the child, or failed to remove a child from intolerable living conditions such as those endured by Peter Gunner at St Mary’s Hostel, an action may succeed against the Director or his estate if the limitation period is extended. But if the judgment of O’Loughlin J is followed in later cases, the independent discretion rule will protect the Commonwealth from liability for miscarriage of the Director’s personal discretionary powers of removal, detention and supervision.

In Australia, litigation by the ‘stolen children’ has focused on fixing governments with sole liability for the harms caused.[8] This case has shown the difficulties in holding governments liable for actions of statutory office holders and for wrongs suffered by the children while in the care of missions. As a result we may see applicants suing other parties involved in the wrongs — Directors, patrol officers, Native Affairs Branch administrators, churches, mission boards, directors of mission institutions and staff. Suing a wider class of defendants will increase the applicants’ chances of obtaining compensation awards. It may also put pressure on the Commonwealth to accept responsibility for the harms caused by its assimilation policies and their implementation.

The national debate over the apology and compensation continues, and so too will the litigation. Appeals from the decisions of O’Loughlin J in Cubillo v Commonwealth and Gunner v Commonwealth have been lodged and are awaiting hearing.

Subsequent development

Since the decision was handed down in Cubillo, the Senate Legal and Constitutional References Committee has delivered its Report into the Stolen Generation and has recommended the establishment of a ‘Reparations Tribunal’ to address the need for effective reparation, including the provision of individual monetary compensation (Recommendations 7-9). The report, Healing: A Legacy of Generations (30 November 2000) can be accessed online on < < legcon_ctte/stolen/contents.htm> >

[*] Pam O’Connor teaches law at Monash University. © 2001 Pam O’Connor (text)© 2001 Jane Cafarella (cartoon)email:

[1] Human Rights and Equal Opportunity Commission, Office of the Aboriginal and Torres Strait Islander Commissioner, Sixth Report 1998, HREOC, 1999.

[2] Champion, Mark, ‘Post-Kruger: Where to Now for the Stolen Generations?’, [1998] IndigLawB 45; (1998) 4(12) Indigenous Law Bulletin 9-11, 10.

[3] [1992] HCA 27; (1992) 176 CLR 408, a case in which four members of the High Court accepted that the Director of Community Welfare owed a fiduciary relationship to the appellant arising out of his statutory office of guardian.

[4] [1998] FCA 1711; (1998) 160 ALR 203 at 218, where the Full Federal Court said that a relationship of guardian and ward may give rise to fiduciary duties.

[5] McGuinness, P.P., ‘Editorial: Poor Fellow My “Stolen” Generation’, Quadrant, November 1999, No 361, Vol XLIII No 11, p.2.

[6] Marsh, Reginald, ‘“Lost”, “Stolen” or “Rescued”’, Quadrant, June 1999, No 357, Vol XLIII, No 6, p.15 and Howson, Peter, ‘Rescued from a Rabbit Barrow’, p.10.

[7] Age, 2 September 2000, Extra p.1.

[8] Cf Williams v Minister, Aboriginal Land Rights Act & Anor (No 2) [1999] NSWSC 843; (1999) 25 Fam LR 86. The Australian litigation may be contrasted with the Canadian approach of suing the churches and government for abuses suffered by indigenous children in church residential schools after removal: see O’Connor, P., ‘Squaring the Circle: How Canada is Dealing with the Legacy of its Indian Residential Schools Experiment’[2000] AUJlHRights 9; , (2000) 6(1) Australian Journal of Human Rights 188.

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